Review Denied Aug. 15, 2013.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for respondent. Sally J. Cooley argued.
PERRY, Judge Pro Tem.
The state of Idaho appeals from the district court's order granting Paul Carey Hartzell's motion to reduce a charge of stalking in the first degree to stalking in the second degree. For the reasons set forth below, we reverse.
FACTS AND PROCEDURE
On October 10, 2011, a former drug counselor for Hartzell obtained an " Order for Protection" in the state of Washington (Washington order) that restrained Hartzell from contacting or attempting to contact the counselor and from engaging in other similar activities for a period of one year. The counselor, who lived in Washington but worked in Idaho, informed the Idaho State Police that Hartzell contacted her while she was in Idaho after the Washington order was issued. The state charged Hartzell with first degree stalking. The state alleged that Hartzell repeatedly contacted or attempted to contact the counselor between October 11 and October 16 and that Hartzell's actions were committed " in violation of a civil protection order." At a preliminary hearing, the state presented testimony and other evidence demonstrating that Hartzell sent flowers to the counselor at her workplace on October 11 with a card stating, " Please be with me forever, I love you, Paul." The evidence also showed Hartzell sent the counselor a message on a social networking service on October 16 stating, in part: " please marry me.... Never before have I wanted children until I imagined how beautiful ours could be if you helped me bring them to be."
At a pretrial hearing, Hartzell argued that the charge of first degree stalking should be reduced to second degree stalking because the Washington order was not a protection order. Hartzell and the state stipulated that Hartzell and the counselor did not have a domestic relationship and that the Washington order was not issued to protect the counselor from domestic violence. The state
conceded that a protection order may only be issued in Idaho upon a finding of domestic violence. The district court determined that the Washington order was not a protection order under Idaho law and reduced the charge from first degree stalking, I.C. § 18-7905, to second degree stalking, I.C. § 18-7906. The state appeals.
A charge of stalking may be elevated to stalking in the first degree based on one of the aggravating factors listed in Idaho Code section ...