Description:

Des Moines, Iowa criminal defense lawyer represented the Defendant charged with stalking.

Walter Pacheco, 29, of Pleasant Hill, had been convicted of the same crime before, but this criminal charge was enhanced to a felony by the existence of a protective order that barred the two from having contact.

Iowa Pencal Code Section 708.11 provides:

1 ASSAULT, §708.11
708.11 Stalking.
1. As used in this section, unless the context otherwise requires:
a. “Accompanying offense” means any public offense committed as part of the course of
conduct engaged in while committing the offense of stalking.
b. “Course of conduct” means repeatedly maintaining a visual or physical proximity to a
person without legitimate purpose, repeatedly utilizing a technological device to locate, listen
to, or watch a person without authorization or legitimate purpose, or repeatedly conveying
oral or written threats, threats implied by conduct, or a combination thereof, directed at or
toward a person.
c. “Immediate family member” means a spouse, parent, child, sibling, or any other person
whoregularlyresidesinthehouseholdofaspecificperson, orwhowithinthepriorsixmonths
regularly resided in the household of a specific person.
d. “Repeatedly” means on two or more occasions.
e. “Technological device” means any computer, cellular phone, smartphone, digital
camera, video camera, audio recording device, global positioning device, or other electronic
device that can be used for creating, storing, or transmitting information in the form of
electronic data.
2. A person commits stalking when all of the following occur:
a. The person purposefully engages in a course of conduct directed at a specific person
thatwouldcauseareasonablepersontofeelterrorized, frightened, intimidated, orthreatened
or to fear that the person intends to cause 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 a reasonable person would
feel terrorized, frightened, intimidated, or threatened or fear that the person intends to cause
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.
3. a. A person who commits stalking in violation of this section commits a class “C” 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 any other court order which prohibits contact between the
person and another person against whom the person has committed a public offense.
(2) The person commits stalking while in possession of a dangerous weapon, as defined
in section 702.7.
(3) The person commits stalking by directing a course of conduct at a specific person who
is under eighteen years of age.
(4) The person utilizes a technological device while committing stalking.
(5) For a third or subsequent offense.
b. A person who commits stalking in violation of this section commits a class “D” felony
if the offense is a second offense which is not included in paragraph “a”.
c. A person who commits stalking in violation of this section commits an aggravated
misdemeanor if the offense is a first offense which is not included in paragraph “a”.
4. Violations of this section and accompanying offenses shall be considered prior
offenses for the purpose of determining whether an offense is a second or subsequent
offense. A conviction for, deferred judgment for, or plea of guilty to a violation of this
section or an accompanying offense which occurred at any time prior to the date of
the violation charged shall be considered in determining that the violation charged is a
second or subsequent offense. Deferred judgments pursuant to section 907.3 for violations
of this section or accompanying offenses and convictions or the equivalent of deferred
judgments for violations in any other states under statutes substantially corresponding
to this section or accompanying offenses shall be counted as previous offenses. The
courts shall judicially notice the statutes of other states which define offenses substantially
equivalent to the offenses defined in this section and its accompanying offenses and can
therefore be considered corresponding statutes. Each previous violation of this section or an
Sat Dec 23 12:28:18 2023 Iowa Code 2024, Section 708.11 (18, 1)
§708.11, ASSAULT 2
accompanying offense on which conviction or deferral of judgment was entered prior to the
date of the violation charged shall be considered and counted as a separate previous offense.
In addition, however, accompanying offenses committed as part of the course of conduct
engaged in while committing the violation of stalking charged shall be considered prior
offenses for the purpose of that violation, even though the accompanying offenses occurred
at approximately the same time. An offense shall be considered a second or subsequent
offense regardless of whether it was committed upon the same person who was the victim
of any other previous offense.
5. Notwithstanding section 804.1, rule of criminal procedure 2.7, Iowa court rules, or any
other provision of law to the contrary, upon the filing of a complaint and a finding of probable
cause to believe an offense has been committed in violation of this section, or after the filing
of an indictment or information alleging a violation of this section, the court shall issue an
arrest warrant, rather than a citation or summons. A peace officer shall not issue a citation
in lieu of arrest for a violation of this section. Notwithstanding section 804.21 or any other
provision of law to the contrary, a person arrested for stalking shall be immediately taken into
custody and shall not be released pursuant to pretrial release guidelines, a bond schedule, or
any similar device, until after the initial appearance before a magistrate. In establishing the
conditions of release, the magistrate may consider the defendant’s prior criminal history, in
addition to the other factors provided in section 811.2.
6. For purposes of determining whether or not the person should register as a sex offender
pursuant to the provisions of chapter 692A, the fact finder shall make a determination as
provided in section 692A.126.

Outcome:

Plaintiff's Experts:

Defendant's Experts:

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