IN THE SUPREME COURT OF IOWA

No. 11–0770

Filed March 8, 2013

STATE OF IOWA,

Appellant,

vs.

CHRISTOPHER RAYMOND LINDELL,

Appellee.

Appeal from the Iowa District Court for Scott County, Thomas G. 

Reidel (motion for bill of particulars) and John D. Telleen (motion to 

dismiss), Judges.

The State appeals from the district court’s grant of a motion for a 

bill of particulars and a motion to dismiss. REVERSED AND 

REMANDED FOR FURTHER PROCEEDINGS.

Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant 

Attorney General, Michael J. Walton, County Attorney, and Jay

Sommers, Assistant County Attorney, for appellant.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, 

Assistant Appellate Defender, for appellee.
2

ZAGER, Justice.

This appeal centers on the question of whether a previous 

conviction for stalking under Iowa Code section 708.11 can be used to 

establish a course of conduct for a subsequent stalking violation. We 

find the legislature intended that for purposes of determining whether an 

offense is a second or subsequent offense of stalking, prior violations of 

the stalking statute can be considered as evidence of the course of 

conduct necessary for a prosecution for stalking as a second or 

subsequent offense. We further find that the rule of lenity does not 

apply, as Lindell had sufficient notice that his conduct could give rise to 

additional criminal liability. Therefore, we reverse the district court and 

remand for further proceedings.

I. Background Facts and Proceedings.

The facts in this case are not in dispute. Christopher Raymond 

Lindell and A.C. were involved in a romantic relationship. In May 2010, 

A.C. attempted to break all ties with Lindell. Based on events occurring 

in April 2010, A.C. obtained an order of protection against Lindell in Polk 

County, Iowa, on April 26, 2010. At some point, A.C. moved to Scott 

County. However, in violation of the protective order, Lindell continued

to make contact with A.C. These contacts included leaving a 

handwritten note and flowers on her car in June 2010; hang-up calls on 

July 4, 6, 9, and 11, 2010; a personal contact on July 4, 2010; and being 

at A.C.’s residence and damaging her automobile tires and other property

on July 11, 2010. As a result of these contacts, A.C. obtained an 

additional order of protection in Scott County on July 11, 2010. A final 

incident occurred on August 23, 2010, when Lindell contacted A.C. twice 

by telephone. All of these incidents form the basis of the prior trial 
3

information charging Lindell with stalking, criminal mischief, and other 

charges.

On December 15, 2010, Lindell pled guilty to stalking, first offense,

with protective order, in violation of Iowa Code section 708.11, and 

fourth-degree criminal mischief, in violation of Iowa Code section 716.1

(2009), for crimes committed against A.C. On January 20, 2011, Lindell 

received a deferred judgment on the stalking charge.1 The court also 

continued the no-contact order for the protection of A.C.

On January 25, 2011, Lindell parked his vehicle in an area where 

he could look directly into the office where A.C. was working. When A.C.

made eye contact with Lindell, he drove away. She immediately reported 

this contact to law enforcement. During the investigation, Lindell 

admitted he had been at that location but claimed he had a legitimate 

reason for being there.

In response to this incident, Christopher Lindell was charged by 

amended trial information with stalking, second offense, or, alternatively, 

stalking in violation of a protective order, in violation of Iowa Code 

sections 708.11(3)(b)(1) and 708.11(3)(b)(4).

Lindell filed a motion for a bill of particulars, arguing the State had 

not alleged sufficient facts in its trial information and minutes of 

testimony to support a violation of the stalking statute, as the State had 

only detailed one incident of harassment in its minutes of testimony. In 

its ruling on Lindell’s motion for a bill of particulars, the district court 

ordered that the State must “file a bill of particulars specifically stating 

the two or more occasions that constitute the course of conduct under 

Iowa Code section 708.11.” The district court required that the two or 

 

1Lindell received a deferred judgment, but for purposes of the stalking statute, it 

is the equivalent of a conviction. See Iowa Code § 708.11(4) (2009).
4

more occasions “shall be separate from those alleged in the Minutes of 

Testimony in [Lindell’s prior conviction].”

In response, the State submitted additional minutes of testimony, 

detailing stalking incidents that had formed the factual basis for Lindell’s 

prior conviction for stalking, but failed to file a bill of particulars in 

response to the court’s order. Lindell then filed a motion to dismiss, 

alleging the State had failed to state at least one additional incident of 

harassing behavior, despite the court’s order to do so. Thus, the trial 

information failed to contain sufficient facts to establish the necessary 

elements of the crime of stalking.

The State argued it had cured its defect by supplementing the 

minutes of testimony with information regarding Lindell’s prior 

convictions. Lindell asserts that double jeopardy principles preclude the 

State from using the prior incidents to establish the course of conduct 

required in the current stalking charge. Specifically, Lindell argued that 

the use of the previous incidents, for which he was convicted, to prove 

the required course of conduct, would violate the Double Jeopardy 

Clause. The district court granted the motion to dismiss. The State 

appealed the decision of the district court. We retained the appeal.

II. Scope of the Review.

We review double jeopardy claims de novo, due to their 

constitutional nature. State v. Kramer, 760 N.W.2d 190, 193–94 (Iowa 

2009). To the extent the issue involves the interpretation of a statute, 

this court reviews for correction of errors at law. In re Det. of Johnson, 

805 N.W.2d 750, 753 (Iowa 2011).

III. Discussion and Analysis.

A. Double Jeopardy. Lindell asserts the State is putting him in 

jeopardy for conduct for which he has already been convicted and 
5

punished. Specifically, he alleges the State is charging he violated Iowa 

Code section 708.11 by committing acts which also served as the basis 

for a prior conviction. The State alleges that Lindell’s interpretation of 

the statute would allow those who have stalked a victim before to engage 

in “one free stalk” of that victim, so long as it occurs after a conviction.

1. Iowa constitutional claim. As an initial matter, the State argues 

that the double jeopardy provision of the Iowa constitution does not 

apply. We agree. Unlike some other constitutional provisions, Iowa’s 

double jeopardy provision is distinct from the Federal Double Jeopardy 

Clause, merely requiring that “[n]o person shall after acquittal, be tried 

for the same offence.” Iowa Const. art. I, § 12. As Lindell was not 

acquitted, we need not evaluate his claims based on Iowa’s double 

jeopardy provision.

2. Scope of federal double jeopardy protection. The Double 

Jeopardy Clause of the United States Constitution states that no person 

shall “be subject for the same offense to be twice put in jeopardy of life or 

limb.” U.S. Const. amend. V. The Fourteenth Amendment binds the 

states to the Double Jeopardy Clause. Benton v. Maryland, 395 U.S. 

784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969); State v. 

Franzen, 495 N.W.2d 714, 715 (Iowa 1993). The Double Jeopardy 

Clause serves to create finality and to prevent prosecutorial overreaching. 

State v. Burgess, 639 N.W.2d 564, 568 (Iowa 2001). “The purpose of this 

clause is to protect against: (1) a second prosecution for the same offense 

after acquittal; (2) a second prosecution for the same offense after 

conviction; and (3) multiple punishments for the same offense.” Id.

3. Double jeopardy analysis hinges on legislative intent. At its 

core, double jeopardy analysis asks what the legislature intended. State 

v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992). The central question is 
6

whether Lindell is being subject to a second prosecution for the same 

offense for which he had previously been convicted and whether he is 

being punished again for the same offense. We note that it is the 

legislature, “and not the prosecution, which establishes and defines 

offenses. Few, if any, limitations are imposed by the Double Jeopardy 

Clause on the legislative power to define offenses.” Sanabria v. United 

States, 437 U.S. 54, 69, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43, 57

(1978).

In considering a double jeopardy claim within the multiple 

punishments context, we are guided by the general principle 

that the question of what punishments are constitutionally 

permissible is no different from the question of what 

punishments the legislature intended to be imposed.

McKettrick, 480 N.W.2d at 57. Both the State, citing Missouri v. Hunter, 

459 U.S. 359, 366–68, 103 S. Ct. 673, 678–79, 74 L. Ed. 2d 535, 542–44 

(1983), and Lindell, citing McKettrick, 480 N.W.2d at 57, agree that the 

crux of the analysis of whether Lindell’s right to be free from double 

jeopardy has been violated is a determination of what the legislature 

intended when it enacted the stalking statute.

B. Intent of the Legislature. We have consistently stated that 

the purpose of statutory interpretation is to determine legislative intent. 

See, e.g., In re Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012).

“We give words their ordinary and common meaning by 

considering the context within which they are used, absent a 

statutory definition or an established meaning in the law. 

We also consider the legislative history of a statute, including 

prior enactments, when ascertaining legislative intent. 

When we interpret a statute, we assess the statute in its 

entirety, not just isolated words or phrases.”

Id. (quoting Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853, 

858 (Iowa 2010)) (citations omitted).
7

In ascertaining legislative intent, we consider “the statute’s subject 

matter, the object to be accomplished, the purpose to be served, 

underlying policies, remedies provided, and the consequences of the 

various interpretations.” State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 

2006) (citation and internal quotation marks omitted). We also consider 

the legislative history of a statute when determining legislative intent. Id.

at 431–32. Finally, we construe criminal statutes strictly and resolve 

doubts in favor of the accused. State v. Adams, 810 N.W.2d 365, 369 

(Iowa 2012).

1. Elements of Iowa’s stalking law. The State has charged Lindell 

with stalking, a violation of Iowa Code section 708.11. Three elements 

must occur to constitute stalking.

a. The person purposefully engages in a course of 

conduct directed at a specific person that would cause a 

reasonable person to fear bodily injury to, or the death of, 

that specific person or a member of the specific person’s 

immediate family.

b. The person has knowledge or should have 

knowledge that the specific person will be placed in 

reasonable fear of bodily injury to, or the death of, that 

specific person or a member of the specific person’s 

immediate family by the course of conduct.

c. The person’s conduct induces fear in the specific 

person of bodily injury to, or the death of, the specific person 

or a member of the specific person’s immediate family.

Iowa Code § 708.11(2).

Lindell argued, and the district court agreed, that the State did not 

originally allege facts sufficient to prove the elements of stalking in the 

instant case. The State originally alleged that Lindell had committed 

only a single act supporting the stalking charge. Specifically, the State 

alleged that Lindell parked his vehicle in front of Astra Furniture, where 

A.C. worked as a bookkeeper, and looked through the window into the 
8

office where she was working. When she looked up and made eye 

contact with him, he drove away. No other incident was detailed in the 

minutes of testimony.

Paragraph (a) of the stalking statute requires a “course of 

conduct.” Iowa Code § 708.11(2)(a). Iowa’s stalking statute defines 

“course of conduct” as “repeatedly maintaining a visual or physical 

proximity to a person without legitimate purpose or repeatedly conveying 

oral or written threats, threats implied by conduct, or a combination 

thereof, directed at or toward a person.” Id. § 708.11(1)(b). Further, the 

statute defines “repeatedly” as “on two or more occasions.” Id.

§ 708.11(1)(d).

2. Using elements of one crime to prove another. When an issue of 

possible double punishment presents itself, we often begin our double 

jeopardy analysis by examining the Blockburger elements test. See 

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.

Ed. 306, 309 (1932). However, we have typically used the Blockburger

elements test in cases in which “two offenses charged under separate 

statutory provisions constitute the same offense for double jeopardy 

purposes.” State v. Schmitz, 610 N.W.2d 514, 515–16 (Iowa 2000); see, 

e.g., Burgess, 639 N.W.2d at 568–70 (analyzing whether theft by 

deception and theft by misappropriation are the same offense for

purposes of double jeopardy).

Blockburger is typically used to evaluate whether one offense is a 

lesser-included offense of another offense. E.g., State v. Abrahamson, 

746 N.W.2d 270, 274 (Iowa 2008) (“Under the Blockburger analysis, the 

court would determine whether two offenses were the ‘same’ by 

comparing the elements of proof required for each offense.”). Under 

Blockburger, proof of one element may be used to establish two different 
9

crimes. 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309 (“The 

applicable rule is that, where the same act or transaction constitutes a 

violation of two distinct statutory provisions, the test to be applied to 

determine whether there are two offenses or only one is whether each 

provision requires proof of a fact which the other does not.”). Lindell is, 

of course, being charged with a subsequent count of violating the same 

statute, and thus, a typical Blockburger analysis is not appropriate.

Further, even if two statutes meet the Blockburger test, legislative intent 

continues to be the paramount piece of a double jeopardy analysis. See

State v. Bullock, 638 N.W.2d 728, 732 (Iowa 2002) (“Even though a crime 

may meet the so-called Blockburger test for lesser-included offenses, it 

may still be separately punished if legislative intent for multiple 

punishments is otherwise indicated.”). Thus, the traditional Blockburger

elements test has no application to our analysis.

3. Previous acts as evidence of course of conduct. However, 

Blockburger does have application here beyond its traditional use. The 

central question in this case is whether the State can use proof that 

Lindell had previously engaged in an action “directed at a specific person 

that would cause a reasonable person to fear bodily injury to, or the 

death of, that specific person or a member of the specific person’s 

immediate family” to establish that he was once again engaging in a 

course of conduct as described in the stalking statute. See Iowa Code 

§§ 708.1(b), .11(2)(a). We find that the legislature intended the actus 

reus of this crime to be the stalking behavior and that the question of 

whether this act was part of a course of conduct is intended as an 

evidentiary one.

Our cases, and the cases of other states, establish that proof of 

prior crimes is admissible if it is relevant. E.g., State v. Helmers, 753 
10

N.W.2d 565, 570 (Iowa 2008) (proof of prior bad acts to establish mens 

rea is admissible); Commonwealth v. Roefaro, 691 A.2d 472, 474 (Pa. 

Super. Ct. 1997) (“[P]rior acts may be admissible to prove intent and 

course of conduct provided that their probative value is not outweighed 

by their prejudicial impact.”).

We have previously applied Blockburger beyond the traditional 

elements test. Schmitz, 610 N.W.2d at 516–17. In Schmitz, we used 

Blockburger to analyze a situation where three separately charged 

offenses—which the defendant claimed were actually part of the same 

offense—were violations of the statutory provision. Id. The defendant in 

Schmitz faced three different theft charges involving control over stolen 

property. Id. at 517. We said the key factor for us to evaluate, based on 

the Blockburger guidance, was whether an act is “of a continuous nature, 

such that it is a course of conduct which is punishable.” Id. at 516–17.

The stalking statute is explicitly a course of conduct statute. Iowa 

Code § 708.11(2)(a). Thus, our analysis turns on determining whether 

the legislature intended for the “two or more occasions” language to 

indicate that the actus reus explicitly requires two or more occasions for 

each offense, or whether that language was adopted to establish that the 

initial incident may have been merely an innocent encounter. Since 

stalking is a cumulative offense, “a mere overlap in proof between two 

prosecutions does not establish a double jeopardy violation.” United 

States v. Felix, 503 U.S. 378, 386, 112 S. Ct. 1377, 1382, 118 L. Ed. 2d 

25, 34 (1992).

Thus, to make our determination, we evaluate the history of the 

adoption of stalking laws generally, and in Iowa specifically.

4. History of stalking laws. Iowa’s stalking statute was first 

enacted in 1992. 1992 Iowa Acts, ch. 1179 (codified at Iowa Code 
11

§ 708.11 (1993)). Iowa was among the first states to enact a stalking 

statute following increased national awareness of the need to protect 

stalking victims. In the wake of five unrelated murders of women who 

had been stalked in California, California passed the first state antistalking legislation in 1990. Nat’l Inst. of Justice, U.S. Dep’t of Justice, 

Project to Develop a Model Anti-Stalking Code for States 12 (Oct. 1993),

available at http://www.popcenter.org/problems/stalking/PDFs/NIJ_

Stalking_1993.pdf [hereafter Project to Develop a Model Anti-Stalking 

Code]. Twenty-nine states, including Iowa, passed anti-stalking laws in 

1992, followed by eighteen additional states and the District of Columbia 

in 1993. Id. at 12 & nn.7–8. Iowa’s original statute, thus, preceded the 

Model Anti-Stalking Code published by the Department of Justice in 

1993. See Iowa Code § 708.11 (1993); id. § 3.7 (making acts effective 

July 1, 1992); Project to Develop a Model Anti-Stalking Code 12.

Shortly after the Department of Justice published its Model AntiStalking Code, the Iowa legislature revised its statute and adopted much 

of the same language proposed by the model code into Iowa’s stalking 

law. See 1994 Iowa Acts ch. 1093 (codified at Iowa Code § 708.11 

(1995)); Project to Develop a Model Anti-Stalking Code 43–44. Specifically, 

the legislature adopted a slightly-modified definition of “course of 

conduct” and a verbatim definition of “repeatedly” from the Model AntiStalking Code, as well as adopting most of the recommendations in the 

model code designed to protect stalking victims. Id. These definitions 

were in effect in 2010 and 2011, the time of the alleged stalking incidents

here. See Iowa Code § 708.11 (2009).

When we ascertain legislative intent, we consider the statute’s 

purpose and the object it was intended to accomplish. Dohlman, 725 

N.W.2d at 431. Since the language of the statute was derived directly 
12

from the Model Anti-Stalking Code, we look to the comments from the 

model code to aid us in determining legislative intent. This is not a novel 

way for us to interpret legislative intent in situations where our 

legislators have not given us clear guidance in the form of stated 

legislative findings or purpose. “In the absence of instructive Iowa 

legislative history, we look to the comments and statements of purpose 

contained in [uniform acts] to guide our interpretation of the comparable 

provision of [an Iowa act.]” In re Marriage of Shanks, 758 N.W.2d 506, 

512 (Iowa 2008); see, e.g., Mulhern v. Catholic Health Initiatives, 799

N.W.2d 104, 115 (Iowa 2011) (“Our court has relied on the drafter’s 

comments to the Uniform Act in construing the Iowa act.”); State v. 

Olsen, 618 N.W.2d 346, 348–49 (Iowa 2000) (using the Model Ongoing 

Criminal Conduct Act to discern legislative intent for Iowa’s ongoing 

criminal conduct statute); State v. Hogrefe, 557 N.W.2d 871, 877 (Iowa 

1996) (using the Model Penal Code to interpret a state criminal statute 

modeled after the code). The authors of the Project encouraged states to 

develop a continuum of charges to assist law enforcement officials in 

intervening at various stages and further encouraged felony classification 

for more egregious forms of stalking. Project to Develop a Model AntiStalking Code 46.

Stalkers may be obsessive, unpredictable, and potentially 

violent. They often commit a series of increasingly serious 

acts, which may become suddenly violent, and result in the 

victim’s injury or death. . . .

. . . .

. . . Policies governing the release of convicted stalkers 

on probation or parole should take into account that some 

stalkers may be more dangerous once they are released from 

prison, and that stalking behavior often escalates into 

violence as time passes and the stalker’s obsession with the 

victim grows.
13

Id. at 49–50.

The Model Anti-Stalking Code also recommended increased 

penalties in situations where a stalker violates a protective order and

recommended “severe [sentencing] enhancements [be] available in 

instances in which the defendant has committed a previous felony or 

stalking offense against the same victim within a certain number of 

years.” Project to Develop a Model Anti-Stalking Code 50. The authors of 

the model code argued, “Appropriate and reasonable mechanisms for 

managing the stalker should be incorporated into states’ sentencing 

schemes to reduce the potential threat to the victim.” Id. The Iowa 

legislature adopted both of these recommendations. Iowa Code 

§708.11(3)(b)(1), (4). Additionally, our legislature enacted amendments to 

the stalking statute to increase its ability to prevent the serious 

consequences of escalating stalking behavior. See, e.g., id. § 708.11(3)

(amending the statute to increase penalties).

The authors of the model code further warned,

This country’s experience with domestic violence has 

produced indisputable evidence of the risks of ignoring the 

potential for violence in these cases or failing to intervene as 

early as possible to change the victimizer’s behavior toward 

his victim. . . . 

. . . Over time, the stalker’s behavior may have life 

threatening consequences for the victim.

. . . Without notice or apparent reason, [the stalker’s] 

behavior may turn violent rapidly.

Project to Develop a Model Anti-Stalking Code 92.

While urging a multidisciplinary approach to the problem of 

stalking, the authors further noted,

The uncertain motives and intentions of the suspected 

stalker and his obsessive and unpredictable behavior place 
14

his victim at great risk of bodily injury or death, as well as 

psychological trauma.

A principal objective of an anti-stalking strategy is to 

intervene in a suspected stalking before the stalking victim is 

injured or killed.

Project to Develop a Model Anti-Stalking Code 69.

Stalking, in fact, is often a predicate to violence. Belinda Wiggins,

Note, Stalking Humans: Is There a Need for Federalization of Anti-Stalking 

Laws in Order to Prevent Recidivism in Stalking?, 50 Syracuse L. Rev. 

1067, 1073 (2000).

Whereas two percent of stalking victims are killed, three to 

thirty-six percent of stalking victims become victims of 

assault and battery which include permanent disfigurement. 

Using current victimization rates, 28,000 stalking victims 

will be murdered, and over 500,000 stalking victims will be 

victims of assault and battery each year.

Id. Victims often become so traumatized that it affects multiple areas of 

their lives. Id.

The question we must answer, then, is whether the legislature 

intended to give a convicted stalker one “free” opportunity to 

“purposefully engage[] in. . . .[any] conduct directed at a specific person 

that would cause a reasonable person to fear bodily injury to, or the 

death of, that specific person or a member of that specific person’s 

immediate family.” See Iowa Code § 708.11(2)(a). This “one free stalk” is 

not a reasonable interpretation of the legislature’s intent in enacting this 

statute. See Project to Develop a Model Anti-Stalking Code 49–50.

A.C. obtained an order of protection in Polk County on April 26, 

2010, then obtained another one in Scott County on July 11, 2010. The 

State alleged that Lindell violated either one or both of the protective 

orders in six discrete incidents beginning on July 4, 2010. Lindell “made 

contact” with A.C. on July 4, July 6, and July 9, 2010. The record does 
15

not speak as to the content of all of those contacts. However, one of the 

contacts was in person. On July 11, 2010, Lindell was outside A.C.’s 

residence at 2:00 a.m. and was apprehended a short distance away.

Prior to apprehension, Lindell flattened A.C.’s tires, damaged her 

landscaping, and destroyed her birdhouse. On August 23, 2010, he 

made two separate “hang-up” phone calls to A.C., one from his own 

cellphone and one from the cellphone of a friend. On December 15, 

2010, Lindell pled guilty to stalking, first offense, with protective order,

and to criminal mischief fourth degree, for crimes committed against A.C. 

He received a deferred judgment and probation on his pleas. The 

incident which precipitated the stalking, second offense, charge occurred 

on January 25, 2011, five days after sentencing. Though Lindell did not 

serve time in jail, his documented stalking behavior spanned over six 

months, with some degree of escalation. Undoubtedly, it was the intent 

of the legislature to prevent this type of long-term stalking that serves to 

frighten the victim and threatens to escalate as the stalker’s obsession 

grows.

This interpretation is consistent with other states that have similar 

stalking laws. Though double jeopardy was not a factor in 

Commonwealth v. Urrutia, the Pennsylvania Superior Court interpreted

the intent of the legislature in enacting a stalking statute similar to 

Iowa’s. 653 A.2d 706, 708 (Pa. Super. Ct. 1995). The Urrutia court 

explained, “Pennsylvania enacted a stalking statute because of the 

growing perceived need to provide increased protection against certain 

types of predatory behavior. . . . The legislative scheme . . . was an 

attempt to interrupt as early as possible the escalating cycle of violence.”

Id. Pennsylvania’s Superior Court became even more outspoken when 
16

another defendant raised the double jeopardy argument in much the 

same way Lindell has raised it in this case.

In Roefaro, the defendant raised a double jeopardy concern after 

his prior convictions were used to help establish a course of conduct for 

his current conviction. Roefaro, 691 A.2d at 474–75. Subsequent to 

these prior convictions, the defendant committed one additional action—

violating the no-contact order and leaving items on the victim’s sister’s 

porch. Id. at 474. The Roefaro court held that these prior convictions 

were admissible as evidence to “prove a course of conduct, of acting in a 

similar manner.” Id. at 475. When Roefaro claimed this was a violation 

of the prohibition against double jeopardy, the court stated,

This is a ludicrous argument that misstates and contorts the 

law of double jeopardy and . . . leads to absurd results.

. . . .

. . . Taken to its natural, yet wholly illogical and 

absurd extent, this rationale would provide a person with 

one ‘free stalk’ following a prior stalking conviction.

Id. at 474–75.

The Georgia Court of Appeals further articulated the purpose of 

stalking statutes in Daker v. State, 548 S.E.2d 354 (Ga. Ct. App. 2001). 

Though the case is factually distinct from the instant case because the 

new charges involved more than one incident, the State did use the same 

evidence in prosecutions in two counties to establish a course of 

conduct. Id. at 355. Daker argued that the use of evidence in one trial 

“used up” the evidence and made it inadmissible at the second trial. Id. 

at 356. The court noted, however, 

As stalking is, by its very nature, a cumulative crime, 

Daker’s interpretation of double jeopardy would eviscerate 

the purpose of the stalking statute, leaving would-be stalkers 

free to begin stalking their victim with a clean slate following 
17

a stalking conviction. We cannot believe the legislature 

intended such result.

Id.

The Wyoming Supreme Court agreed with the Georgia Court of 

Appeals, quoting the above language verbatim in its opinion. Snow v. 

State, 216 P.3d 505, 511 (Wyo. 2009). The Snow court continued, 

We conclude that the fact that the appellant was punished 

for violating a protection order did not prohibit his also being 

punished for felony stalking, despite the fact that the 

conduct upon which the protection order violation was based 

became part of the conduct upon which the felony stalking 

conviction was based.

Id. at 512. As with Lindell, Snow had committed crimes against his 

victim previous to being charged with stalking. If we were to hold that 

evidence of previous convictions could not be used in a stalking charge, 

we would essentially be giving a free pass from stalking charges to 

anyone who chose to engage in stalking behavior that also violated other 

laws, such as criminal mischief or felony property destruction, as long as 

they had been convicted of those charges prior to the time the stalking 

charge was brought.

The Court of Criminal Appeals of Alabama also held that “in order 

to show a course of conduct in a stalking case, the admission of a 

defendant’s prior convictions for bad acts concerning the stalking victim 

does not constitute a violation of a defendant’s protection against double 

jeopardy.” Jones v. State, 915 So. 2d 78, 83 (Ala. Crim. App. 2005) 

(citing Mims v. State, 816 So. 2d 509, 515–16 (Ala. Crim. App. 2001)). 

The Mims court also dealt with convictions for crimes other than stalking 

specifically and found that “the testimony of the [defendant’s] prior bad 

acts—even those for which he might have already been prosecuted—was 
18

properly admitted and was necessary to establish a course of conduct by 

the [defendant].” 816 So. 2d at 516.

Only Idaho appears to sympathize somewhat with Lindell’s 

position, although State v. Stewart, 234 P.3d 707 (Idaho 2010), is not 

precisely on point. In Stewart, the Idaho Supreme Court found that in 

order to violate its statute forbidding a course of conduct “where the 

actions constituting the offense are in violation of a no contact order,” all 

of the actions must occur after the issuance of the protective order. Id.

at 714–15. The Stewart court made its decision based on its statutory 

definition of felony stalking. Id. Though the two statutes are similar,2 all 

of the instances of stalking here occurred after the issuance of two 

protective orders, making this case factually distinguishable.

The Ohio legislature has written Ohio’s stalking statute specifically 

to define “pattern of conduct” as including “two or more actions or 

incidents closely related in time, whether or not there has been a prior 

conviction based on any of those actions or incidents.” Ohio Rev. Code

 

2In pertinent part, the Idaho Code provides:

1. A person commits the crime of stalking in the first degree if the 

person violates section 18–7906, Idaho Code, and:

(a) The actions constituting the offense are in violation of a 

temporary restraining order, protection order, no contact order or 

injunction, or any combination thereof; or . . . .

Idaho Code Ann. § 18–7905 (2004).

Similarly, Iowa Code section 708.11(3) provides:

b. A person who commits stalking in violation of this section 

commits a class “D” felony if any of the following apply:

1. The person commits stalking while subject to restrictions 

contained in a criminal or civil protective order or injunction, or any 

other court order which prohibits contact between the person and the 

victim, or while subject to restrictions contained in a criminal or civil 

protective order or injunction or other court order which prohibits 

contact between the person and another person against whom the 

person has committed a public offense.

Iowa Code § 708.11(3)(b) (2009)
19

Ann. § 2903.211(D)(1)(2010). Though Iowa’s statute has not explicitly 

made it clear that prior convictions could be considered in determining 

whether there is a course of conduct, the Ohio Court of Appeals held that 

the legislature’s intent to use evidence of prior convictions to 

demonstrate a pattern of conduct did not violate the Double Jeopardy 

Clause of the Federal Constitution. State v. Werfel, Nos. 2002–L–101, 

2002–L–102, 2003 WL 22994981 *2–3 (Ohio Ct. App. Dec. 22, 2003)

(unpublished opinion). A proper analysis should focus on legislative 

intent. See Hunter, 459 U.S. at 368, 103 S. Ct. at 679, 74 L. Ed. 2d at

543 (“The question of what punishments are constitutionally permissible 

is no different from the question of what punishment the Legislative 

Branch intended to be imposed.”); State v. Reed, 618 N.W.2d 327, 336 

(Iowa 2000); State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999); State v. 

Hickman, 576 N.W.2d 364, 368 (Iowa 1998); McKettrick, 480 N.W.2d at 

57.

While Lindell attempts to distinguish these and other cases 

factually, the salient point is that other states have consistently 

interpreted similar statutes as existing to protect the victim and as 

opposed to the concept of “one free stalk.” See, e.g., Daker, 548 S.E.2d 

at 356–57; Roefaro, 691 A.2d at 474–75. But see, e.g., People v. Herron, 

251 P.3d 1190, 1194 (Colo. App. 2010) (“[F]or defendant to be convicted 

of stalking, he had to have followed, approached, contacted, or surveiled

[the victim] on at least two occasions. To be convicted of a second 

stalking offense, he would have had to so act, in a separate transaction 

that is factually distinct from the first, on at least two more occasions.”). 

Since double jeopardy analysis is driven exclusively by legislative intent, 

we conclude that Lindell’s interpretation is not consistent with the intent 

of legislatures adopting statutes in conformance with the Model AntiStalking Code.
20

5. Increased prosecutorial discretion. We have previously rejected 

an interpretation of a statute partially due to concern that the 

interpretation would result in piecemeal prosecution as a means of 

avoiding the need to comply with the speedy trial rule. Abrahamson, 746 

N.W.2d at 277. If we were to adopt the interpretation Lindell urges, we 

could be encouraging prosecutors to withhold an occurrence from the 

initial prosecution to ensure that a victim would continue to be protected 

from potentially escalating violence after the stalker’s slate has been 

“wiped clean.” We could also be opening the door for someone involved 

in a discrete series of events to be prosecuted for several courses of 

conduct by defining each set of occurrences as an independent violation 

of the statute. Thus, under this theory, Lindell’s original prosecution—

which included six independent occurrences—could have been for three 

different violations of the stalking statute.

Commentators have raised concerns regarding allowing 

prosecutors to fragment charges, particularly when those charges are 

raised in successive trials. E.g., Anne Bowen Poulin, Double Jeopardy 

Protection from Successive Prosecution: A Proposed Approach, 92 Geo. L.J. 

1183, 1191–96 (2004).

By fragmenting its case, the prosecution enhances the 

likelihood that the defendant will receive a higher sentence 

for three reasons. First, the prosecution can extend its 

period of control over the defendant by bringing successive 

prosecutions. Second, the prosecution may employ 

successive related convictions to realize a higher cumulative 

sentence. Finally, the prosecution can sometimes obtain a 

guilty plea and secure a base sentence in the first 

prosecution, and then press for a higher sentence in a later 

prosecution.

Id. at 1194–95 (footnote omitted).

One of the primary purposes of the Double Jeopardy Clause is to 

create finality and prevent prosecutorial overreaching. Burgess, 639 
21

N.W.2d at 568. It seems clear the legislature intended for a single course 

of conduct to be prosecuted as such, and then to allow a convicted 

stalker to avoid repeated prosecutions for that same course of conduct,

based on a prosecutor deciding to create multiple two-instance counts. 

Under that interpretation, Lindell could have been prosecuted for four or 

more initial counts. Treating each instance as part of the evidence to 

determine a course of conduct instead of as the actus reus helps prevent 

prosecutorial overreaching, while preserving the intent of the legislature 

in protecting victims of stalking.

C. The Rule of Lenity. We construe criminal statutes strictly 

and resolve doubts in favor of the accused. State v. Schultz, 604 N.W.2d 

60, 62 (Iowa 1999).

Further, “[w]e recognize the principle of construing a statute 

reasonably in light of its plain purpose is sometimes in tension with the 

rule of lenity, which directs that criminal statutes are to be strictly 

construed in favor of the accused.” State v. Hearn, 797 N.W.2d 577, 585 

(Iowa 2011). While the precise scope of the rule of lenity is difficult to 

ascertain, we have recognized that the United States Supreme Court has, 

in recent years, “embraced a relatively narrow view of the rule.” Id. at 

586. Under what is frequently termed the “Moskal approach” (in light of 

the leading case), “the question of whether a statute is sufficiently 

‘ambiguous’ to invoke the rule of lenity is confronted only after the court 

has exhausted all interpretive techniques, including consideration of 

legislative history and other extrinsic evidence.” Id. (citing Moskal v. 

United States, 498 U.S. 103, 108, 111 S. Ct. 461, 465, 112 L. Ed. 2d 

449, 458 (1990)). We further noted that the United States Supreme 

Court has established that the rule of lenity is to be applied exclusively 

in cases of “grievous ambiguity.” Id. Essentially, we noted the United 

States Supreme Court tends to view the rule of lenity as a “tie breaker in 
22

cases where there is no basis for choosing among plausible 

interpretations of a statute.” Id.

Though we recognized in Hearn that our cases “tend to be 

conclusory, less than nuanced, and arguably inconsistent” with regard to 

the rule of lenity, we also acknowledged that part of the problem in 

applying the rule is that “extrinsic legislative history in Iowa is generally 

sparse.” Id. However, we recognize that where the legislative intent is 

clear, “we see no appreciable risk that a defendant would be without fair 

notice that [his] conduct . . . could give rise to additional criminal 

liability.” Id.

Here, where the legislative history is enhanced by the comments to 

the model code on which Iowa’s statute is based, it is easier to determine 

legislative intent than is typical in Iowa. Further, Lindell was subject to 

two orders of protection. He was on notice his behavior could give rise to 

additional criminal liability. The rule of lenity does not apply.

IV. Disposition.

We conclude the intent of the legislature in enacting Iowa Code 

section 708.11 was clear and unambiguous. The legislature did not 

intend to allow a stalker to continue a pattern of stalking behavior and 

be protected under the shield of double jeopardy. Since the Double 

Jeopardy Clause does not act as a restraint on legislative power, the 

stalking statute, as applied in this case, does not violate the Double 

Jeopardy Clause. Further, the statute gave fair notice to Lindell that his 

conduct could potentially give rise to criminal liability. Thus, the rule of 

lenity would not apply.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except Mansfield, J., Cady, C.J., and Appel, J., 

who dissent.
23

#11–0770, State v. Lindell

MANSFIELD, Justice (dissenting).

I respectfully dissent and would affirm the district court.

The Double Jeopardy Clause of the United States Constitution 

provides that no person shall “be subject for the same offence to be twice 

put in jeopardy of life or limb.” U.S. Const. amend. V. In this case, 

Christopher Lindell was originally charged with stalking A.C. based on a 

number of incidents that occurred during the June–August 2010 time 

period. “Stalking” involves a “course of conduct,” in other words, “two or 

more occasions” of “maintaining a visual or physical proximity to a 

person without legitimate purpose or . . . conveying oral or written 

threats, threats implied by conduct, or a combination thereof, directed at 

or toward a person” that “induce[] fear in the specific person of bodily 

injury to, or the death of, the specific person.” See Iowa Code § 708.11 

(2009). On December 15, 2010, Lindell pled guilty to that charge of 

stalking.

Lindell subsequently put himself in proximity to A.C. again on 

January 25, 2011. The State charged Lindell with stalking once more 

and attempted to use the June–August 2010 incidents plus the single 

January 25, 2011 incident as the basis for the new charge.

I believe the district court correctly concluded that this would 

amount to a double jeopardy violation. Stalking requires a course of 

conduct, but there was no second course of conduct—only a single new 

incident of harassment. Ask this question: Assuming no earlier criminal 

case, could the State have prosecuted Lindell after January 25, 2011, for 

two separate counts of stalking—one consisting of the events from June 

2010–August 2010 and the other consisting of the events from June 

2010–August 2010 plus the January 25, 2011 incident? I think the 
24

answer is clearly no. Accordingly, the Double Jeopardy Clause bars the 

successive prosecutions here. See Brown v. Ohio, 432 U.S. 161, 166, 97 

S. Ct. 2221, 2226, 53 L. Ed. 2d 187, 194–95 (1977).

Brown seems to me the controlling precedent. In that case, the 

defendant stole a car in East Cleveland on November 29. Id. at 162, 97 

S. Ct. at 2223, 53 L. Ed. 2d at 192. He was caught driving that car in 

Wickliffe on December 8. Id. After being apprehended in Wickliffe, the 

defendant was charged with “joyriding” (taking or operating the car 

without the owner’s consent) “on or about December 8,” and pled guilty. 

Id. at 162, 97 S. Ct. at 2224, 53 L. Ed. 2d at 192. Later, he was returned 

to East Cleveland. Id. There he was charged with and pled guilty to a 

theft of the car “on or about the 29th day of November.” Id. at 163, 97 S. 

Ct. at 2224, 53 L. Ed. 2d at 192. The Supreme Court held the 

defendant’s double jeopardy objection to the second prosecution should 

have been sustained. The Court explained:

After correctly holding that joyriding and auto theft are 

the same offense under the Double Jeopardy Clause, the 

Ohio Court of Appeals nevertheless concluded that Nathaniel 

Brown could be convicted of both crimes because the 

charges against him focused on different parts of his 9-day 

joyride. We hold a different view. The Double Jeopardy 

Clause is not such a fragile guarantee that prosecutors can 

avoid its limitations by the simple expedient of dividing a 

single crime into a series of temporal or spatial units. The 

applicable Ohio statutes, as written and as construed in this 

case, make the theft and operation of a single car a single 

offense. Although the Wickliffe and East Cleveland 

authorities may have had different perspectives on Brown’s 

offense, it was still only one offense under Ohio law. 

Accordingly, the specification of different dates in the two 

charges on which Brown was convicted cannot alter the fact 

that he was placed twice in jeopardy for the same offense in 

violation of the Fifth and Fourteenth Amendments.

Id. at 169–70, 97 S. Ct. at 2227, 53 L. Ed. 2d at 196–97 (citations 

omitted). In a footnote, the Court acknowledged, “We would have a 
25

different case if the Ohio Legislature had provided that joyriding is a 

separate offense for each day in which a motor vehicle is operated 

without the owner’s consent.” Id. at 170 n.8, 97 S. Ct. at 2227 n.8, 53 L. 

Ed. 2d at 196 n.8.

I think we have the same situation here. Iowa requires a course of 

conduct for a stalking conviction, consisting of two or more incidents. 

But just as there was only one joyride/theft in Brown, regardless of the 

fact that the two prosecutions focused on different time periods, there 

was only one course of conduct here. The incident that triggered 

Lindell’s second prosecution did not amount to a course of conduct in 

itself and had to be tacked onto the earlier course of conduct for which 

Lindell had already been prosecuted and pled guilty.

The out-of-state stalking cases relied on by the majority are 

generally distinguishable because the second prosecution involved an 

entirely separate course of conduct that had not been the subject of a 

prior criminal prosecution. Those courts rightly concluded that merely 

admitting evidence of the previously prosecuted conduct did not violate 

double jeopardy principles, so long as there was sufficient unprosecuted 

conduct to support the new charges. See Mims v. State, 816 So. 2d 509, 

516 (Ala. Crim. App. 2001) (concluding that “no evidence was offered to 

prove any specific prior prosecution or conviction” and “the prosecution 

presented far more evidence of a course of conduct establishing the 

appellant’s following and harassing White than the evidence the 

appellant complains of here”); Daker v. State, 548 S.E.2d 354, 357 (Ga. 

Ct. App. 2001) (“Daker was prosecuted for altogether different incidents 

in Cobb County. The fact that evidence of the Fulton County incidents 

was admitted during the Cobb County trial does not change the result.”); 

Commonwealth v. Roefaro, 691 A.2d 472, 474–75 (Pa. Super. Ct. 1997) 
26

(“[A]ppellant was twice tried and convicted for actions arising out of 

separate and distinct factual predicates.”); see also Snow v. State, 216 

P.3d 505, 511 (Wyo. 2009) (finding no double jeopardy bar to 

simultaneous prosecution and convictions of the defendant for both 

violating a protection order and stalking, because the former was not a 

lesser-included offense of the latter). This case is different because the 

new conduct is sufficient only when combined with the prior conduct for 

which Lindell had already been prosecuted.3

As noted by my colleagues, an Idaho case seems to indicate that 

the circumstances here would amount to a double jeopardy violation. 

See State v. Stewart, 234 P.3d 707, 713 (Idaho 2010). But it is not a 

loner. In State v. Fox, the North Carolina Court of Appeals confronted 

the situation where the defendant had previously been convicted of 

stalking for a February–March 2009 series of incidents. See 721 S.E.2d 

673, 674 (N.C. Ct. App. 2011). He then was prosecuted again for 

stalking based on the incidents from February 2009–March 2009 plus

subsequent events. Id. at 676–77. The court vacated the second 

conviction on double jeopardy grounds. Id. at 678. Similarly, in People 

 

3United States v. Felix, also cited by the majority, is distinguishable on the same 

grounds. See 503 U.S. 378, 112 S. Ct. 1377, 118 L. Ed. 2d 25 (1992). In that case, the 

defendant engaged in separate methamphetamine manufacturing activities in 

Oklahoma and later in Missouri. Id. at 380, 112 S. Ct. at 1379–80, 118 L. Ed. 2d at 30. 

When the defendant was prosecuted for the Missouri conduct, “[i]n order to establish 

Felix’s criminal intent with respect to the items delivered in Missouri, the Government 

introduced evidence that Felix had manufactured methamphetamine in Oklahoma 

earlier in 1987.” Id. at 381, 112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The government 

subsequently prosecuted the defendant for the Oklahoma activity as well. Id. at 382, 

112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The United States Supreme Court found no 

double jeopardy violation arising out of the Oklahoma prosecution because “[a]t the 

Missouri trial, the Government did not in any way prosecute Felix for the Oklahoma 

methamphetamine transactions; it simply introduced those transactions as prior acts 

evidence under Rule 404(b).” Id. at 387, 112 S. Ct. at 1383, 118 L. Ed. 2d at 34. Here, 

by contrast, the June 2010–August 2010 conduct was a necessary component of the 

second stalking charge; it was not merely going to be evidence of the defendant’s intent 

under Iowa Rule of Evidence 5.404(b).
27

v. Herron, 251 P.3d 1190 (Colo. App. 2010), the Colorado Court of 

Appeals said:

Thus, for defendant to be convicted of stalking, he had to 

have followed, approached, contacted, or surveiled Ms. R on 

at least two occasions. To be convicted of a second stalking 

offense, he would have had to so act, in a separate 

transaction that is factually distinct from the first, on at 

least two more occasions.

Herron, 251 P.3d at 1194; see also Vazquez v. State, 953 So. 2d 569, 571 

(Fla. Dist. Ct. App. 2007) (vacating a second stalking conviction on 

double jeopardy grounds where “[t]he charging document for the simple 

stalking charge on which appellant was previously convicted alleges that 

on November 18 and 19, 2002, appellant ‘repeatedly telephone [sic], 

harassed, and threatened Ms. Atencio’ ” and the second information 

alleged that “ ‘between 11–16–02 and 12–4–02’ appellant ‘did knowingly, 

willfully, maliciously, and repeatedly follow or harass’ ” Ms. Atencio);

Eichelberger v. State, 949 So. 2d 358, 361 (Fla. Dist. Ct. App. 2007) 

(finding a second stalking prosecution violated the Double Jeopardy 

Clause where the state “did not allege or establish the end of one course 

of conduct and the start of a new course of conduct”); Peckinpaugh v. 

State, 743 N.E.2d 1238, 1241 (Ind. Ct. App. 2001) (“[I]n Indiana, a 

defendant may be convicted of separate counts of stalking the same 

victim if the respective series of incidents upon which the charges are 

based can be divided into distinct and separate series.”); People v. White, 

536 N.W.2d 876, 881–82 (Mich. Ct. App. 1995) (finding no double 

jeopardy violation where the defendant “pleaded guilty of two separate 

episodes of stalking,” each involving two or more acts); State v. Vigil, 65 

S.W.3d 26, 35–36 (Tenn. Crim. App. 2001) (barring a second stalking 

prosecution on double jeopardy grounds and noting that “[f]rom the 

record before us, there is no indication that an event occurred before the 
28

February 18, 1997 incident to break the continuous course of conduct 

that constituted the stalking offense as charged in Case No. 23386, 

which covered the events from February 1996 to January 1997”).

My colleagues discuss State v. Schmitz, which I agree is a relevant 

precedent. See 610 N.W.2d 514 (Iowa 2000). However, contrary to my 

colleagues, I believe Schmitz supports a finding of double jeopardy here. 

In Schmitz, the defendant was charged with three counts of theft. Id. at 

515. Each count was based on the defendant’s possession of a separate 

item (an aquarium, a jacket, and four wheels/tires) that had been stolen 

from a different location at a different time. Id. The thefts had occurred 

seven to ten months apart. Id. In finding no double jeopardy violation, 

we emphasized that theft is not a “continuing offense” based on a “course 

of conduct,” and that each theft charge against Schmitz required 

different “proof of facts.” Id. at 517–18. Those factors cut the other way 

here. Stalking is a course of conduct offense, and to prove stalking in 

the present case the State must use conduct that it already used to 

convict Lindell of stalking.

If the legislature wanted to relieve the State from the burden of 

having to prove a second course of conduct in order to obtain a second 

stalking conviction, it could have defined the offense in the same way 

Ohio has done, as including a prior stalking conviction, plus just one 

new incident of harassment. See Ohio Rev. Code Ann. § 2903.211(D)(1) 

(West, Westlaw through 2012 laws and statewide issues of the 129th GA 

(2011–2012)). Our general assembly did not do this. We must consider 

“[w]hat [the legislature] has made the allowable unit of prosecution.” Bell 

v. United States, 349 U.S. 81, 81, 75 S. Ct. 620, 621, 99 L. Ed. 905, 909 

(1955) (citation and internal quotation marks omitted).
29

In sum, the Double Jeopardy Clause prohibits the State from using 

the same conduct as all or part of the basis for two convictions of the 

same offense. By way of analogy, suppose an individual works at an 

office where cash is kept in a locked drawer. She opens the drawer and 

steals $750 on May 1, and then opens the drawer and steals $500 on 

May 2. By the majority’s logic, she could be convicted of third-degree 

theft (property exceeding $500) for the May 1 theft and then later be 

convicted of second-degree theft (property exceeding $1000) for the May 

1/May 2 combined theft. See Iowa Code §§ 714.2(2)–(3), .3. Similar to 

the foregoing scenario, the majority opinion results in Lindell’s being 

“twice put in jeopardy” for his actions from June 2010 through August 

2010. See U.S. Const. amend. V. I believe this violates the Fifth and 

Fourteenth Amendments to the United States Constitution.

For the foregoing reasons, I respectfully dissent.

Cady, C.J., and Appel, J., join this opinion.