Background
Montrez Lushon Mayberry was charged with first degree stalking and two counts of domestic battery with traumatic injury arising from incidents in March 2023 and June 13, 2023, in Nez Perce County, Idaho. Despite an active no-contact order, Mayberry and the victim, M.F., were in a dating relationship and lived together. The State’s theory of the stalking charge rested entirely on physical violence: Mayberry had punched, slapped, bitten, and struck M.F. on multiple occasions. The State argued these repeated acts of nonconsensual physical contact constituted a “course of conduct” under Idaho’s stalking statute, I.C. § 18-7906.
A jury convicted Mayberry of first degree stalking and one count of domestic battery with traumatic injury for the June 13 incident (acquitting him of the March 2023 battery count). In the bifurcated phase, the jury found the stalking occurred in violation of a no-contact order, elevating the offense to first degree. The district court sentenced Mayberry to a determinate ten years for domestic battery and an indeterminate five years for stalking, to run consecutively. The court denied Mayberry’s Rule 35 motion to reduce the battery sentence, and Mayberry appealed both the stalking conviction and the Rule 35 denial.
On appeal, Mayberry argued that “nonconsensual contact” under I.C. § 18-7906(2)(c) means communicative, intrusive, or surveillance-based conduct — not physical assault or battery already covered by other criminal statutes. The State countered that the statute’s use of “any contact” is broad enough to encompass unwanted physical touching.
The Court’s Holding
The Idaho Court of Appeals vacated the first degree stalking conviction, holding that “contact” within I.C. § 18-7906(2)(c) does not encompass physical touching that is already criminalized under separate statutes. The court found the term “contact” facially ambiguous — dictionary definitions support both a communicative and a physical meaning — but resolved that ambiguity through the statute’s context, enumerated examples, and legislative history. All seven examples of “nonconsensual contact” listed in the statute involve communication, presence, or surveillance (e.g., following, telephoning, appearing at a residence, sending mail), and none describe physical violence. The court concluded the legislature’s deliberate omission of physical touching from the non-exhaustive list signals that it did not intend to include conduct already addressed by assault and battery statutes.
Examining legislative history from the statute’s 1992 enactment and its 2004 amendment, the court found that the stalking law was designed to criminalize intrusive communicative behavior — following, surveilling, harassing by presence or communication — that created reasonable fear of future physical harm, not to duplicate existing assault and battery prohibitions. No committee testimony from either legislative session referenced physical contact as a targeted harm. The court held that because M.F. invited Mayberry to live with her, consented to their ongoing relationship, and never sought to avoid or discontinue communicative contact, the State produced no evidence of the type of nonconsensual contact the statute requires.
The court affirmed the denial of Mayberry’s Rule 35 motion, finding he presented no new or additional information sufficient to demonstrate his ten-year determinate sentence for domestic battery was excessive, and therefore no abuse of discretion by the district court.
Key Takeaways
- Idaho’s stalking statute, I.C. § 18-7906(2)(c), requires a “course of conduct” built on nonconsensual communicative contact — following, surveillance, unwanted presence, or repeated communication — not on physical violence already punishable under assault or battery statutes.
- Even though the statute’s list of prohibited contacts is expressly non-exhaustive (“includes, but is not limited to”), a court may use legislative history and contextual analysis to conclude that certain categories of conduct fall outside the statute’s scope.
- Prosecutors may not bootstrap a stalking charge onto domestic violence facts by characterizing repeated physical assaults as repeated “nonconsensual contact”; the appropriate charges for such conduct remain assault, battery, and related offenses.
- A Rule 35 motion to reduce sentence requires the defendant to present new or additional information not before the sentencing court; rehashing existing facts is insufficient to demonstrate abuse of discretion.
Why It Matters
This decision draws a significant line for prosecutors and defense attorneys in Idaho domestic violence cases: the stalking statute cannot be used as an aggravated wrapper around physical abuse alone. Where the relationship between a defendant and victim involves consensual cohabitation and the alleged “course of conduct” consists entirely of assaultive physical acts, the stalking charge will fail for want of the communicative or surveillance-based nonconsensual contact the statute targets. Practitioners handling cases in which a no-contact order is in place should be aware that the order’s existence elevates second degree stalking to first degree only if the underlying conduct independently qualifies as stalking — the violation of the order cannot rescue an otherwise deficient charge.
More broadly, the decision illustrates the limits of “includes, but is not limited to” language in criminal statutes. Despite that open-ended phrasing, Idaho courts will look to the listed examples, the statute’s public-policy origins, and committee history to cabin the reach of a provision, particularly where an expansive reading would effectively duplicate the coverage of other criminal laws. Defense counsel in other jurisdictions with similarly worded stalking statutes may find the court’s statutory-construction methodology persuasive in analogous circumstances.