July 19, 2019

Colorado Court of Appeals: Defendant’s Three Stalking Convictions for Single Offense Must Be Merged

The Colorado Court of Appeals issued its opinion in People v. Wagner on Thursday, May 18, 2018.

Stalking—Merger—Evidence—Unanimity Jury Instruction—Double Jeopardy.

Wagner was arrested and charged with three counts of stalking his ex-wife. He was found guilty on all counts and sentenced to 90 days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run consecutively.

On appeal, the People conceded that two of Wagner’s stalking convictions should have merged at sentencing. The court of appeals determined that the People did not prove factually distinct instances of conduct sufficient to support multiple stalking convictions. The Double Jeopardy Clauses of the U.S. and Colorado Constitutions required that defendant’s three stalking convictions merge. The court concluded that defendant was charged with and convicted of multiplicitous counts and it was plainly erroneous for the trial court to enter three stalking convictions.

Wagner argued that there was insufficient evidence to support all three of his convictions. However, the evidence was sufficient to show both that Wagner’s conduct would have caused a reasonable person serious emotional distress and that it caused the victim serious emotional distress. Additionally, the evidence was sufficient for the jury to find that Wagner made credible threats.

Wagner further contended that the trial court erred in rejecting a defense-tendered unanimity jury instruction or, in the alternative, failing to require the prosecution to elect between the alleged credible threats. The prosecution presented evidence of numerous occasions on which Wagner contacted and followed the victim, any number of which could have supported a stalking conviction. The defense did not argue that Wagner did not commit the acts about which the victim and witnesses testified, and the jury would be likely to agree either that all of the acts occurred or that none occurred. Therefore, the prosecution was not required to elect the acts on which it was relying to prove that Wagner had made a credible threat, nor was the trial court required to give a unanimity instruction.

Two of the counts were vacated. The case was remanded for the trial court to merge the convictions and correct the mittimus. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Authentication of Text Messages Requires Testimony Verifying Printouts and Identifying Sender

The Colorado Court of Appeals issued its opinion in People v. Heisler on Thursday, May 4, 2017.

Harassment—Text Messages—Evidence—Domestic Violence—Sentencing—Sixth Amendment.

The victim and Heisler dated for three years. After they broke up, the victim told Heisler that she no longer wished to communicate with him. Heisler ignored the victim’s request and sent her numerous text messages and letters, and eventually traveled from Florida, where he lived, to Colorado to talk to the victim in person—uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was ultimately found guilty of harassment and sentenced to jail time and probation, and because the conduct underlying his conviction included an act of domestic violence, he was ordered to complete domestic violence treatment.

On appeal, Heisler contended that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under CRE 901(a). Here, the prosecution introduced printouts of the text messages, and the victim testified that they accurately reflected the texts she received, she recognized the number as being Heisler’s and had used that number to communicate with him, and she recognized the content of the text messages as being from Heisler. In addition, the content of the text messages included corroborative evidence that they came from Heisler. Accordingly, the text messages were properly authenticated and it was not error to admit them into evidence.

Heisler also contended that the domestic violence sentencing statute, C.R.S. § 18-6-801(1)(a), is facially violative of his constitutional right to a jury trial under the Sixth Amendment to the U.S. Constitution. He argued that the statute improperly authorizes the trial court to make a factual determination that the underlying crime of conviction included an act of domestic violence and unconstitutionally imposes a mandatory penalty (domestic violence treatment) above the minimum of the presumptive sentencing range (here, a $50 fine). He further contended that the trial court should have instructed the jury to determine whether his offense included an act of domestic violence and erred in denying his request for that instruction. C.R.S. § 18-6-801(1) allows a trial court to make a factual finding that the defendant’s underlying criminal conviction included an act of domestic violence. Court-ordered domestic violence treatment is not a form of punishment, and the statute does not mandate a penalty. The court did not err in denying Heisler’s request for a jury instruction. No Sixth Amendment violation occurred.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prejudicial Effect of Other Bad Act Evidence Outweighed Possible Relevance

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 9, 2014.

Stalking—Surveillance—Other Acts Evidence—Expert.

Defendant asked a woman he knew to “house sit” his apartment for six months while he worked in South Korea. Before he left, and without the house sitter’s knowledge, defendant set up motion-sensitive video cameras in the apartment’s bedroom and living room. The house sitter discovered the cameras about twelve days after she moved in. Some of the recordings showed the house sitter having sex with her boyfriend. A jury convicted defendant of two counts each of stalking, invasion of privacy, and unlawful sexual contact.

On appeal, defendant contended that the trial court abused its discretion when it “admitted other act evidence of an unrelated sexual encounter involving another individual.” The prosecution’s offer of proof alleged that a woman who had rented a room to defendant awoke one night to find him crouched near her bed, wearing only his underwear, and masturbating while watching her. The woman’s trial testimony was significantly different from the prosecution’s offer of proof. At trial, she stated that she awoke because defendant had touched her “underneath the covers in [her] crotch.”The woman’s description at trial was qualitatively different, more severe, and more inflammatory than the evidence concerning the charged offenses. Therefore, her testimony was inadmissible pursuant to CRE 403 and the trial court erred by admitting such evidence. Because there was a reasonable probability that the error contributed to defendant’s convictions by substantially influencing the verdict or impairing the trial’s fairness, the convictions were reversed and the case was remanded for a new trial.

Defendant also contended that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. Defendant sought to admit testimony by a psychologist who performed a sex-offense-specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States, and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal. Because the evidence was relevant to the charge of unlawful sexual contact, the court abused its discretion in excluding such testimony. The trial court should allow defendant to present such evidence on retrial.

Defendant further argued that the evidence was insufficient to support his convictions for stalking. Defendant’s use of the cameras constituted surveillance, which supported the stalking charge.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Emails Sent from Boston and Received in Baltimore Caused Threats for Safety of People in Colorado

The Colorado Court of Appeals issued its opinion in People v. Chase on Thursday, March 14, 2013.

Felony Stalking—Subject Matter Jurisdiction—Sufficiency of Evidence a Question of Law.

Defendant Jerry Chase appealed the judgment of conviction entered on jury verdicts finding him guilty of three felony counts of stalking and three misdemeanor counts of harassment. He also appealed the sentences imposed. The judgment was affirmed.

From 2002 to 2008, Chase resided in Wapiti Meadows, a low-income housing complex in Grand County, where he met the three named victims: G.B., D.D., and M.G. M.G. and D.D. were husband and wife. D.D. was the former property manager and M.G. was the maintenance supervisor. During his tenancy, Chase frequently complained to all three about his neighbors, the B. family, whom he alleged made noises that disturbed him. In 2008, Mr. B. accused Chase of putting sugar in his gas tank. Chase was charged with criminal mischief, and a restraining order was entered against him. Chase violated the order by banging on the B. family’s well and yelling an ethnic threat at them.

The Wapiti management evicted Chase on October 1, 2008. On the evening of October 6, 2008, Chase (who was in Boston) sent an e-mail to twenty-three recipients, including G.B., M.G., and D.D. The e-mail was obscenity-laced and contained overt threats against the park residents. The following morning, Chase sent a second obscenity-laced e-mail to thirty-four recipients, including G.B., M.G., and D.D. The e-mail contained direct threats against G.B., M.G., D.D., and others. He then sent another threatening e-mail that contained a photo of a man pointing a gun at a judge, followed by three more e-mails containing similar vile language and violent threats. M.G. and D.D. were in Baltimore when they received the e-mails. They returned to Colorado a few days later and were under the impression that Chase was in Colorado, as well.

Chase was charged with three felony counts of stalking under former CRS § 18-9-111(4)(b)(II). The court also instructed the jury on the lesser non-included offense of misdemeanor harassment by computer. The jury convicted Chase of three counts of felony stalking—one for each victim. He also was convicted of three misdemeanor counts of harassment by computer. Chase was sentenced to four years on each of the felony counts, to run consecutively.

On appeal, Chase argued his convictions of felony stalking of M.G. and D.D. must be vacated. He argued there was insufficient evidence to establish that Colorado had subject matter jurisdiction because no part of the offenses against them was committed in Colorado. The Court of Appeals disagreed.

The Court looked to CRS § 18-1-201 (state jurisdiction over criminal offenses) in relation to the felony stalking statute. The Court found that under the plain language of CRS § 18-9-111(4)(b)(II) and (c)(II), the elemental conduct of making a credible threat is defined by its result of causing a reasonable person to be in fear for his or her safety or the safety of his or her family or intimates. The question under CRS § 18-1-201 was whether Chase committed at least part of the conduct in Colorado.

Chase argued that because he wrote and sent the e-mails in Boston, and because M.G. and D.D. opened the e-mails in Baltimore, none of the conduct occurred in Colorado. The Court held that the proper question was whether the result of Chase’s conduct (causing a reasonable person to be in fear for his or her safety) occurred, at least in part, in Colorado. This is a question of fact for the jury, and the Court found sufficient support in the record to support the jury’s finding that the threats made by Chase in the e-mails would have caused a reasonable person to be in fear for his or her own safety and the safety of other persons in Colorado.

Chase made a related argument concerning whether, in response to a question from the jury, the trial court should have elaborated on the element of the offense regarding its occurrence in Colorado. The Court found no error in the trial court not elaborating on the elemental instruction, but found its response well within the trial court’s sound discretion. Specifically, the Court found that (1) the jury’s question did not reflect a fundamental misunderstanding of a legal element of the offense; (2) the original instructions properly stated the applicable law and adequately answered the question; and (3) the response of the trial court was essentially as defense counsel requested.

Chase also argued that there was insufficient evidence to prove he made a credible threat as defined in CRS § 18-9-111(4)(c)(II) and to prove he made repeated communications in connection with the threat as required under CRS § 18-9-111(4)(b)(II). The Court disagreed, finding the evidence more than sufficient to find the e-mails, with their implicit and explicit threats, to cause a reasonable person to be in fear for his or her safety or the safety of other persons. It also found that reading the six e-mails in one sitting does not mean they were not repeated communications.

Chase contended that the trial court gave an incorrect mens rea instruction to the jury. The Court disagreed. Because no contemporaneous objection to the instruction was made, it was reviewed for plain error. The instruction tracked the language of CRS § 18-9-111(4)(b)(II) and the Court perceived no error.

Chase argued that CRS § 18-9-111(4)(b)(II) was unconstitutional as applied to him because it violated his First Amendment and Equal Protection Clause rights. The Court disagreed. Speech that contains “true threats” may be regulated by the government. The jury found that Chase’s e-mails were true threats and, based on the Court’s independent review of the record, it agreed.

Finally, Chase argued that because his conduct fell within the ambit of the misdemeanor harassment statute, convicting him as a felon violated his equal protection rights. The Court disagreed. Different statutes proscribing the same criminal conduct with disparate criminal sanctions violate equal protection principles. The two statutes here, however, proscribe different criminal conduct. Specifically the felony stalking statute requires repeated communications in connection with a credible threat, whereas the misdemeanor statute requires only one communication by use of a computer in a manner intended to harass or threaten bodily injury or property damage. The conduct is related, but not identical.

Summary and full case available here.