The double jeopardy clause of the US Constitution protects people from serving multiple punishments for the same offense (“no person shall…be twice put in jeopardy of life or limb”). Here we have a defendant who got 5 years for stalking and 5 years for violating a protection order (to be served consecutively (i.e. he got 10 years)), both of which convictions were based on the same criminal action. It would seem at first glance like this is a case of multiple punishments for the same offense…but not quite.
The rule with double jeopardy is if each offense requires proof of a fact that the other does not, then the offenses are not the same, notwithstanding substantial overlap in the proof offered to establish the crimes.
The elements of the two crimes above are ever so slightly different. Stalking, as defined in §565.225, is any person who purposely and repeatedly harasses or follows with the intent of harassing another person. Harass is further defined as conduct that would cause a reasonable person to suffer substantial emotional distress.
The elements of violating an order of protection are set out in §455.085.2. Chapter 455 (which covers domestic relations) has a different definition of stalking then what was used in Chapter 565 (which covers general crimes). Stalking here is when a person purposely and repeatedly engages in unwanted course of conduct causing alarm to another person when reasonable for that person to have felt alarmed. Again, alarm is further defined as causing fear of danger of physical harm.
So there you have it, stalking the crime under Chapter 565 is causing “harassment” whereas stalking in a domestic context under Chapter 455 is causing “alarm”. Since harassment causes emotional distress and alarm causes fear of physical harm, the two similar charges are in fact different because they require proof of different facts. One requires proof of emotional distress, the other proof of fear of physical harm.
State v. Stewart, No. 30307 (Mo. App. S.D., July 26, 2011)