Must prove protective order to show stalking as charged

Rick Kittel won in State v. Hardy, No. 105,270 (Kan. App. June 29, 2012)(unpublished), reversing a Finney County stalking conviction.  The COA agreed that, as charged and instructed, the state had to prove the existence of a protective order to sustain a conviction for stalking:

The existence of a protective order prohibiting a defendant from having contact with a targeted person is an element of K.S.A. 2009 Supp. 21-3438(a)(3). Here, because the existence of such an order is an element of this offense, the State was required to prove the existence of a protective order which prohibited Hardy from contacting Maxfield.

. . . . 

Here, the State produced no evidence of a protective order stating that Hardy was prohibited from having any contact with Maxfield. Indeed, the stipulation, which represented the conditions of the protective order, did not say that Hardy shall not have any contact with Maxfield. To the contrary, the stipulation stated that Hardy was to have no contact directly or indirectly with Maxfield, except to communicate about their joint children. Based strictly on the language of the complaint and the stalking instruction, the State failed to prove the existence of a protective order prohibiting Hardy from having any contact with Maxfield.

Because the state did not prove the offense as charged and instructed, the COA reversed.

[Update: the state did not file a PR and the mandate issued on August 2, 2012.]