The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 31, 2025
2025COA69
No. 21CA1104, People v. Casper — Crimes — Stalking —
Credible Threat; Criminal Law — Mens Rea — Knowingly;
Constitutional Law — First Amendment — Freedom of
Speech — True Threats
In this appeal, a criminal defendant challenges his judgment
of conviction for stalking – credible threat in violation of section
18-3-602(1)(a), C.R.S. 2024, and harassment in violation of section
18-9-111(1)(e), C.R.S. 2024. The defendant’s convictions stem from
emails he sent in 2020. Before trial, the defendant brought an as-
applied constitutional challenge to the stalking charge, contending
that the speech in his emails didn’t rise to the level of a true threat
and was, therefore, protected by the First Amendment. Applying
the factors set forth in People in Interest of R.D., 2020 CO 44,
abrogated by Counterman v. Colorado,
600 U.S. 66 (2023), the trial
court denied the defendant’s challenge and found that the speech in
his emails constituted “true threats.”
After the defendant’s trial, the United States Supreme Court
issued its opinion in Counterman, which addressed a different
subsection of Colorado’s stalking statute, section 18-3-602(1)(c);
reversed People v. Counterman, 2021 COA 97; and abrogated R.D.
The Supreme Court concluded that the First Amendment requires a
defendant charged with stalking based on “true threats” to have a
“subjective understanding” that his statements are threatening in
nature and that a mens rea of recklessness is sufficient to
demonstrate such an understanding. Counterman,
600 U.S. at 69-
70, 78-82.
A division of the court of appeals now addresses whether the
defendant’s conviction satisfied the mens rea requirement set forth
in Counterman. The division concludes that it did because section
18-3-602(1)(a) requires the mens rea of knowingly.
The division also rejects the defendant’s remaining contentions
and affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2025COA69
Court of Appeals No. 21CA1104
Pitkin County District Court No. 20CR23
Honorable Christopher G. Seldin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeremiah D. Casper,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE HAWTHORNE*
Lipinsky and Gomez, JJ., concur
Announced July 31, 2025
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Joseph Chase, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Jeremiah D. Casper, appeals his judgment of
conviction for stalking – credible threat in violation of section
18-3-602(1)(a), C.R.S. 2024, and harassment in violation of section
18-9-111(1)(e), C.R.S. 2024. His convictions stem from emails he
sent in 2020. Before trial, Casper brought an as-applied
constitutional challenge to the stalking charge, contending that the
speech in his emails didn’t rise to the level of a true threat and was,
therefore, protected by the First Amendment. Applying the factors
set forth in People in Interest of R.D., 2020 CO 44, abrogated by
Counterman v. Colorado,
600 U.S. 66 (2023), the trial court denied
Casper’s challenge and found that the speech in his emails
constituted “true threats.”
¶2 After Casper’s trial, the United States Supreme Court issued
its opinion in Counterman, which addressed a different subsection
of Colorado’s stalking statute, section 18-3-602(1)(c); reversed
People v. Counterman,
2021 COA 97; and abrogated R.D. The
Supreme Court concluded that the First Amendment requires a
defendant charged with stalking based on “true threats” to have a
“subjective understanding” that his statements are threatening in
nature and that a mens rea of recklessness is sufficient to
1
demonstrate such an understanding. Counterman, 600 U.S. at 69-
70, 78-82.
¶3 We now address whether Casper’s conviction satisfied the
mens rea requirement set forth in Counterman. We conclude that it
did because section 18-3-602(1)(a) requires the mens rea of
knowingly.
¶4 We also reject Casper’s remaining contentions that insufficient
evidence was presented at trial and that his convictions should
merge. Accordingly, we affirm the judgment of conviction.
I. Background
¶5 Casper’s convictions originate from a series of emails he sent
to B.O., a police officer, in April 2020. We first set forth the events
that led to those emails and then describe Casper’s conduct
underlying his convictions.
A. Casper’s Initial Arrest
¶6 In June 2017, B.O. and B.V., another police officer,
apprehended Casper on suspicion of burglary, theft, and
trespassing. While restrained in the police car, Casper repeatedly
unfastened his seatbelt, prompting B.O. to apply a pain compliance
technique twice. Upset about the use of the pain compliance
2
technique, Casper contacted his then public defender, M.O., about
the use of the technique and filed an official report with the sheriff’s
office. But according to Casper, he never heard back from M.O. or
received any indication that the police were addressing his
concerns. This prompted Casper to send a series of emails to,
among others, M.O., B.O., and B.V. in April 2018.
¶7 The People charged Casper with harassment in connection
with the April 2018 emails. In a victim impact statement, B.O.
reported, “My gut tells me Casper’s not a physical threat to me or
my family, however, I still took substantial steps to prepare my
family and to defend a physical threat or attack in case I’m wrong. I
do feel . . . harassed and want the unsolicited communication to
stop permanently.” However, B.O. never asked Casper to stop
contacting him, blocked Casper’s email, or sought a protection
order against him. The harassment charges related to the April
2018 emails were eventually dismissed.
B. April 2020 Emails
¶8 In December 2019, a jury found Casper guilty of burglary and
theft, and the district court sentenced him to thirty months in the
Department of Corrections’ custody. B.O. testified at that trial. In
3
April 2020, Casper was released from custody. Shortly after his
release, he sent a series of emails to B.O.’s work email. Those
emails included the following statements:
• “See the thing is, the bullets are expensive,” with the
subject line “Target practice.”
• “The thing about lead is a little bit goes a long ways.”
• “You would be amazed about my rifle practice. Im [sic] a
sharp shooter.”
• “The rifle-man.”
• “When I take aim, I know all about the wind. I like a red
laser.”
• “I see blue skys [sic] in my cross hairs.”
• “Should I take the shot,” with the subject line “Trigger
finger.”
• “So 6 feet of rope or the sniper.”
• “Be creative,” with the subject line “6 Feet of rope.”
• “Im [sic] looking down from Red Mountain.”
• “As you can tell, its a blizzard on Red Mountain.”
• “So everybody wants to know [B.O.] did it. Here is how I
do it. I’m gonna take about 6 teeth and a broken jam
4
[sic]. Then we’ll get fired up!” with the subject line
“Boxing.”
• “You know I get in the mood from time to time, fry me up
some pork,” with the subject line “Firing Cops.”
• “How many teeth am I gonna remove from [B.O.]’s head?”
¶9 Casper included B.V. and C.M., his public defender from his
burglary and theft trial, on some of the April 2020 emails. He also
sent an email directly to C.M. stating, “You know Im gonaa [sic] put
a 9mm in [B.O.]’s throat.” C.M. forwarded this email to B.O.
C. Procedural History
¶ 10 B.O. contacted the Snowmass Village Police Department in
response to Casper’s April 2020 emails, and the Pitkin County
Sheriff’s Office investigated them. Casper was arrested and charged
with four counts: (1) retaliation against a witness, § 18-8-706,
C.R.S. 2024; (2) stalking – credible threat, § 18-3-602(1)(a);
(3) stalking – serious emotional distress, § 18-3-602(1)(c); and
(4) harassment, § 18-9-111(1)(e).
¶ 11 Before trial, the People dismissed the stalking – serious
emotional distress charge. Casper then filed a motion to dismiss
the remaining stalking charge, asserting that the statute was
5
unconstitutional as applied to him and that his emails to B.O. were
protected speech because they did not contain “true threat[s].”
After an evidentiary hearing, the district court, applying the test
outlined in R.D., concluded that Casper’s emails to B.O. were “true
threats” and denied his motion to dismiss. The parties then
proceeded to a jury trial on that stalking charge, along with the
remaining counts.
¶ 12 The jury acquitted Casper of retaliating against a witness but
convicted him of stalking – credible threat and harassment. The
court sentenced Casper to four years in the Department of
Corrections’ custody on the stalking conviction and six months of
concurrent jail time on the harassment conviction.
II. Analysis
¶ 13 On appeal, Casper contends that (1) his stalking and
harassment convictions violate his First Amendment free speech
rights and should be vacated because his April 2020 emails to B.O.,
taken in context, were not “true threats”; (2) there was insufficient
evidence to support his stalking and harassment convictions; and
(3) his harassment conviction should merge into his stalking
6
conviction because both convictions stem from the April 2020
emails. We address and reject each contention below.
A. Constitutional Challenge
¶ 14 We first address Casper’s contention that his stalking and
harassment convictions violate his First Amendment rights. We
affirm Casper’s stalking conviction because the district court
properly instructed the jury consistent with the holding in
Counterman. And we affirm Casper’s harassment conviction
because he waived his claim that the conviction is unconstitutional.
1. Legal Principles and Standard of Review
¶ 15 Whether a statement is a “true threat,” and thus falls outside
the First Amendment’s protection, is a factual issue to be
determined by the fact finder. People v. Chase, 2013 COA 27, ¶¶
68, 70. But an appellate court reviews First Amendment free
speech issues de novo and “must make an independent review of
the whole record to ensure that the judgment rendered does not
intrude on the right of free speech.” Holliday v. Reg’l Transp. Dist.,
43 P.3d 676, 681 (Colo. App. 2001).
7
¶ 16 At the time of Casper’s trial, Colorado courts applied the
contextual factors test announced in R.D. to determine whether a
statement constituted a “true threat” by considering
(1) the statement’s role in a broader exchange,
if any, including surrounding events; (2) the
medium or platform through which the
statement was communicated, including any
distinctive conventions or architectural
features; (3) the manner in which the
statement was conveyed (e.g., anonymously or
not, privately or publicly); (4) the relationship
between the speaker and recipient(s); and
(5) the subjective reaction of the statement’s
intended or foreseeable recipient(s).
R.D., ¶ 4.
¶ 17 But in Counterman, the United States Supreme Court held
that, in “true-threats” cases, “the State must prove . . . that the
defendant had some understanding of his statements’ threatening
character.” Counterman, 600 U.S. at 73. The Supreme Court also
held that a mens rea standard of recklessness “is enough” for this
purpose.
Id. According to the Supreme Court, the recklessness
standard “offers ‘enough “breathing space” for protected speech,’
without sacrificing too many of the benefits of enforcing laws
against true threats.”
Id. at 82 (quoting Elonis v. United States,
575
U.S. 723, 748 (2015) (Alito, J., concurring in part and dissenting in
8
part)). The Supreme Court also noted that it “do[es] not require
that the State prove the defendant had any more specific intent to
threaten the victim.” Id. at 73.
¶ 18 We review preserved constitutional challenges for
constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11.
Under this standard, we need not reverse if we conclude that any
error was “harmless beyond a reasonable doubt.”
Id. (quoting
Chapman v. California,
386 U.S. 18, 24 (1967)). But “if ‘there is a
reasonable possibility that the [error] might have contributed to the
conviction,’” we must reverse.
Id. (citation omitted).
2. Additional Facts
¶ 19 After the evidentiary hearing regarding Casper’s motion to
dismiss his remaining stalking charge, the district court applied
R.D. in determining that Casper’s 2020 emails to B.O. were “true
threats.” Specifically, the court found that the emails were “true
threats” for the following reasons:
• “[T]he words here convey[ed] a credible threat.”
• “[S]ufficient circumstance[s]” existed “to provide Mr.
Casper with a motive to be angry at [B.O.] and to provide
a reasonable basis to conclude that the e-mails sent to
9
[B.O.] were sent as threats in retaliation for those acts
taken by [B.O.] against Mr. Casper in connection with the
prior case.”
• The statements were not “included in the course of any
sort of political demonstration, or other manifestation of
classic opinion driven speech.”
• The statements were communicated privately to B.O. and
C.M., which “heighten[ed] the conclusion that [the
emails] were sent not for political purposes, but rather
more reasonably understood to communicate threats and
hostility to the recipient.”
• Casper did not convey these statements “anonymously”
or “publicly.” Rather, Casper conveyed the statements
“privately” and “repeatedly.”
• The timing of the emails was “significant” because they
“were sent shortly after Mr. Casper was released from the
Department of Corrections on parole.”
• B.O.’s subjective reaction to Casper’s emails “was
concern. Fear. And that [wa]s reasonable.”
10
¶ 20 The court denied Casper’s motion to dismiss the remaining
stalking count, and the case proceeded to trial.
3. Casper’s Stalking Conviction
¶ 21 We first address Casper’s contention that his stalking
conviction should be vacated because it violates his First
Amendment rights. We conclude that the district court erred by
making constitutionally inadequate findings when it denied
Casper’s motion to dismiss. But we decline to vacate Casper’s
stalking conviction because the error was harmless beyond a
reasonable doubt.
a. The District Court Erred by Making Constitutionally
Inadequate Findings
¶ 22 The court’s findings were inadequate to protect against “the
prospect of chilling fully protected expression,” Counterman, 600
U.S. at 75, because the R.D. test that the court followed did not
address the mens rea standard required under Counterman. See
R.D., ¶ 4. And without a determination of Casper’s subjective
understanding of the threatening character of his emails, the
court’s “true threat” findings were insufficient to strip the emails of
First Amendment protections. See Counterman,
600 U.S. at 73, 82.
11
¶ 23 But the district court’s error is harmless beyond a reasonable
doubt if the jury instructions required the jury to make
constitutionally adequate findings. See People v. Abdulla, 2020
COA 109M, ¶ 58 (“[W]e employ the presumption that the jury
understands and applies the given instructions unless a contrary
showing is made . . . .”). We address that question next.
b. Whether the Jury Made Constitutionally Adequate Findings
¶ 24 To begin, we note that the statutory subsection at issue in
Counterman differs from the subsection under which Casper was
convicted. Compare § 18-3-602(1)(c), with § 18-3-602(1)(a). Unlike
Casper, Counterman was convicted of stalking – serious emotional
distress, which required the prosecution to prove that he
“knowingly”
[r]epeatedly follow[ed], approache[d],
contact[ed], place[d] under surveillance, or
ma[de] any form of communication with
another person, a member of that person’s
immediate family, or someone with whom that
person has or has had a continuing
relationship in a manner that would cause a
reasonable person to suffer serious emotional
distress and d[id] cause that person, a member
of that person’s immediate family, or someone
with whom that person has or has had a
continuing relationship to suffer serious
emotional distress.
12
§ 18-3-602(1)(c) (emphasis added). In Counterman, the Supreme
Court identified the infirmity as “[t]he State[’s] ha[ving] to show only
that a reasonable person would understand [Counterman’s]
statements as threats.” Counterman, 600 U.S. at 82. The Supreme
Court concluded that Counterman’s conviction under section 18-3-
602(1)(c) failed to pass muster under the First Amendment because
the State “did not have to show any awareness on [Counterman’s]
part that the statements could be understood” as threats.
Counterman,
600 U.S. at 82.
¶ 25 But Casper was not convicted of stalking – serious emotional
distress. Rather, he was convicted of stalking – credible threat
under section 18-3-602(1)(a), which contains different statutory
language than does section 18-3-602(1)(c). Section 18-3-602(1)(a)
requires the State to prove that Casper “knowingly . . . [made] a
credible threat to another person and, in connection with the threat,
repeatedly follow[ed], approache[d], contact[ed], or place[d] under
surveillance that person, a member of that person’s immediate
family, or someone with whom that person has or has had a
continuing relationship.” (Emphasis added.)
13
¶ 26 In Counterman, the Supreme Court defined when a person
acts knowingly as “when ‘he is aware that [a] result is practically
certain to follow.’” 600 U.S. at 79 (alteration in original) (quoting
United States v. Bailey,
444 U.S. 394, 404 (1980)). And particularly
as it related to Counterman’s case, the Supreme Court interpreted
that to mean “when he knows to a practical certainty that others
will take his words as threats.”
Id.
¶ 27 Section 18-3-602(2)(b) defines a “[c]redible threat” as
a threat, physical action, or repeated conduct
that would cause a reasonable person to be in
fear for the person’s safety or the safety of his
or her immediate family or of someone with
whom the person has or has had a continuing
relationship. The threat need not be directly
expressed if the totality of the conduct would
cause a reasonable person such fear.
¶ 28 Construing this statutory provision with the definition of
“knowingly” provided in Counterman, the result, as applicable to
Casper’s conduct, is that Casper committed stalking under section
18-3-602(1)(a) if he made a threat or repeated conduct toward B.O.,
and in connection with that threat/conduct, repeatedly contacted
B.O., knowing to a practical certainty that his threat or repeated
conduct would cause a reasonable person to be in fear for that
14
person’s safety or the safety of his or her immediate family. See
§ 18-1-503(4), C.R.S. 2024 (“When a statute defining an offense
prescribes as an element thereof a specified culpable mental state,
that mental state is deemed to apply to every element of the offense
unless an intent to limit its application clearly appears.”).
¶ 29 This is sufficient to meet the subjective mental state required
under Counterman because knowingly is a more culpable mental
state than recklessly. See Counterman, 600 U.S. at 78-79 (“Purpose
is the most culpable level in the standard mental-state hierarchy,”
and “[n]ext down, though not often distinguished from purpose, is
knowledge.”). Indeed, Counterman approved the lesser mental-state
standard of recklessness, noting that, “[i]n the threats context, it
means that a speaker is aware ‘that others could regard his
statements as’ threatening violence and ‘delivers them anyway.’”
Id.
at 79 (emphasis added) (quoting Elonis,
575 U.S. at 746 (Alito, J.,
concurring in part and dissenting in part)).
¶ 30 At trial, Jury Instruction No. 11 instructed the jury, consistent
with section 18-3-602(1)(a), as follows:
The elements of the crime of stalking are:
1. That the defendant,
15
2. in the State of Colorado, at or about the
date and place charged,
3. knowingly,
4. made a credible threat to another person,
either directly, or indirectly through a third
person, and
5. in connection with the threat, repeatedly
made any form of communication with that
person, regardless of whether a conversation
ensued.
(Emphasis added.)
¶ 31 The court also instructed the jury on the definition of
“knowingly” in Instruction No. 14 as follows:
A person acts “knowingly” with respect to
conduct or to a circumstance described by a
statute defining an offense when he is aware
that his conduct is of such nature or that such
a circumstance exists. A person acts
“knowingly” with respect to a result of his
conduct, when he is aware that his conduct is
practically certain to cause the result.
(Emphasis added.)
¶ 32 The trial court then instructed the jury on the definition of
“credible threat” in Instruction No. 15 as follows:
“Credible threat” means a threat, physical
action, or repeated conduct that would cause a
reasonable person to be in fear for the person’s
safety or the safety of his immediate family or
of someone with whom the person has or has
16
had a continuing relationship. The threat
need not be directly expressed if the totality of
the conduct would cause a reasonable person
such fear.
(Emphasis added.)
¶ 33 Because Instruction No. 11 included “knowingly” as a stand-
alone element before the fourth and fifth elements, the instructions
required the jury to make factual findings regarding Casper’s
subjective mental state about whether he was making a credible
threat against B.O. when he sent the emails. See Chase, ¶¶ 61-63
(concluding that there was no error in the jury instruction regarding
the mens rea element of felony stalking because “[t]he [jury]
instruction listed the knowingly mens rea as a standalone element,
thereby indicating that it applied to all of the subsequent elements
of the offense”); see also § 18-1-503(4). More specifically, the
inclusion of “knowingly” as a stand-alone element before the
subsequent elements required the jury to make factual findings as
to whether, when sending the emails, Casper was aware that he
was making “a threat” and aware to a practical certainty that the
emails “would cause a reasonable person to be in fear for the
person’s safety.” And in finding Casper guilty under section 18-3-
17
602(1)(a), the jury found that his subjective state of mind in sending
the emails to B.O. satisfied a more culpable and difficult to prove
mens rea standard — knowingly — than the minimum recklessness
standard required after Counterman. See Counterman, 600 U.S. at
73, 79.
¶ 34 Because the instructions required the jury to consider whether
Casper knowingly made a credible threat to B.O., its verdict
survives constitutional scrutiny, and we decline to reverse Casper’s
stalking – credible threat conviction on this ground. Further, given
our conclusion that a jury finding made in accordance with the
statutory language of section 18-3-602(1)(a) does not violate
Counterman, we disagree with Casper’s contention that the
statutory definition of “credible threat” under section 18-3-602(2)(b)
is facially unconstitutional. As explained above, the statute Casper
was charged with and found guilty of violating, section 18-3-
602(1)(a), required the People to prove that Casper knowingly made
a credible threat to B.O. See § 18-1-503(4). Thus, even though the
subjective mental state was not set forth in the definition of
“credible threat” in section 18-3-602(2)(b), taken in context, Casper
was not convicted based on an objective standard. We, therefore,
18
decline to say that section 18-3-602(2)(b) is facially
unconstitutional.
¶ 35 Because section 18-3-602(1)(a) and the jury instructions
required the People to prove that Casper knowingly made a threat
that would cause a reasonable person to be in fear of their safety,
we decline to reverse his stalking conviction.
4. Casper’s Harassment Conviction
¶ 36 We next address Casper’s contention that his harassment
conviction violates his First Amendment rights. Because Casper
conceded at trial that he committed harassment, he waived this
contention, and we decline to address it on the merits.
¶ 37 At multiple points during Casper’s trial, his attorney conceded
that he was guilty of harassment. For example, during the
defense’s opening statement, Casper’s attorney said,
[The People] also have to prove to you . . . that
these e-mails constitute the crime of
harassment. Now, we’re not disputing that
this was harassment. It was. These e-mails
were aggressive. They talk about guns. They
talk about target practice. And there was an
excessive amount of them.
¶ 38 Then, during the defense’s closing statement, Casper’s
attorney said, “Now, I think this first one is relatively easy.
19
Harassment. And Mr. Casper is guilty. You can fill it out when you
get back there. He sent these e-mails with the intent to harass,
annoy, or alarm another person.” Casper’s attorney also told the
jury, “We agree, it’s harassment.”
¶ 39 Because Casper (through his attorney) conceded that he was
guilty of harassment, he waived his First Amendment
constitutionality challenge to the harassment conviction. “Waiver is
‘the intentional relinquishment of a known right or privilege.’”
Forgette v. People, 2023 CO 4, ¶ 28 (quoting People v. Rediger,
2018
CO 32, ¶ 39). “A waiver may be explicit, as, for example, when a
party expressly abandons an existing right or privilege, or it may be
implied, as when a party engages in conduct that manifests an
intent to relinquish a right or privilege or acts inconsistently with its
assertion.”
Id. Casper’s trial counsel made a First Amendment
“true threats” objection to the stalking charge and was therefore
presumably fully aware that a similar challenge could be made to
the harassment charge. Still, Casper’s counsel not only declined to
contest the constitutionality of the harassment charge but also
admitted Casper’s guilt for that charge.
20
¶ 40 Based on these facts, we conclude that Casper impliedly
waived any constitutional challenge to his harassment charge. See
id. at ¶ 34 (The defendant “intentionally relinquished his known
right to object to [a] sleeping juror and therefore waived any such
objection for appellate review” because his “counsel was fully aware
of the sleeping juror but did not object or ask the court to take any
action to address the issue.”).
21
¶ 41 Because Casper waived his constitutional claim as to the
harassment charge, we need not address it.1 See Phillips v. People,
2019 CO 72, ¶ 18 (“[A] waiver extinguishes error, and therefore
appellate review . . . .” (quoting Rediger, ¶ 40)).
B. Sufficiency of the Evidence
¶ 42 Casper next argues that there was insufficient evidence to
support either (1) the stalking conviction, because he was not aware
that his emails were a credible threat; or (2) the harassment
1 In People v. Moreno, 2022 CO 15, ¶¶ 1, 27, 33, the Colorado
Supreme Court held that the language “intended to harass” in
section 18-9-111(1)(e), C.R.S. 2024, was unconstitutionally
overbroad. The supreme court concluded, however, that the
remaining prohibitions in section 18-9-111(1)(e) were not
invalidated by the unconstitutional nature of the “intended to
harass” language. Moreno, ¶ 27. Casper was charged with and
convicted of harassment under section 18-9-111(1)(e), and the
harassment jury instructions included the “intended to harass”
language. While we acknowledge the unconstitutional nature of
this language, we decline to consider whether the trial court erred
by using this language when instructing the jury because Casper
did not raise this issue on appeal. See Galvan v. People,
2020 CO
82, ¶ 45 (“Under our adversarial system of justice, we adhere to the
party presentation principle, which relies on the parties to frame
the issues to be decided and assigns to courts the role of neutral
arbiters of the matters raised.”); Moody v. People,
159 P.3d 611, 614
(Colo. 2007) (“[A]rguments not advanced on appeal are generally
deemed waived.”). Indeed, at oral argument, defense counsel said
that he didn’t believe the erroneous instruction would have affected
the trial because, at trial, defense counsel conceded Casper’s guilt
on the harassment charge.
22
conviction, because it was not his “conscious objective” to threaten
B.O. We disagree.
1. Standard of Review and Applicable Legal Principles
¶ 43 We review a sufficiency of the evidence claim de novo. McCoy
v. People, 2019 CO 44, ¶ 34. In assessing whether a conviction is
supported by sufficient evidence, “we ask ‘whether the relevant
evidence, both direct and circumstantial, when viewed as a whole
and in the light most favorable to the prosecution, is substantial
and sufficient to support a conclusion by a reasonable mind that
the defendant is guilty of the charge beyond a reasonable doubt.’”
People v. Donald,
2020 CO 24, ¶ 18 (quoting Clark v. People,
232
P.3d 1287, 1291 (Colo. 2010)).
2. Application
¶ 44 We first address the sufficiency of the evidence as it relates to
Casper’s stalking conviction. Then we address the sufficiency of the
evidence as it relates to Casper’s harassment conviction.
a. Stalking Conviction
¶ 45 Casper appears to challenge only whether there was sufficient
evidence to support the conclusion that he knowingly made a
credible threat to B.O. We therefore focus our analysis on this
23
point and conclude that the relevant evidence presented at trial was
sufficient to support Casper’s stalking conviction, and that he
knowingly made credible threats to B.O.
¶ 46 While there was limited direct evidence that Casper knowingly
made credible threats against B.O., the People introduced sufficient
circumstantial evidence that Casper knew he was making credible
threats when he sent the emails. First, during his testimony,
Casper acknowledged that he had sent the emails and was aware of
the content of many of them. And many of the emails contained
references to bodily harm and potentially lethal weapons that could
be construed as threatening.2 While Casper disputed the meaning
of the emails during his testimony, the jury could reasonably
determine that the emails constituted a credible threat and,
because Casper knew he sent them, he knowingly made a credible
threat to B.O. Second, Casper sent the emails shortly after he was
released by the Department of Corrections and testified that, on the
day he sent the emails, he was angry about what happened in the
police car in 2018. Again, this evidence could support a conclusion
2 The contents of some of these emails are quoted in Part I.B above.
24
by a reasonable mind that Casper knowingly made a credible threat
to B.O. Third, Casper had sent emails to B.O. in the past, but in
the 2020 emails, the threat level of Casper’s messages to B.O.
escalated. This additional circumstantial evidence could also
support the conclusion that Casper knowingly made credible
threats to B.O. See People v. Buckner, 2022 COA 14, ¶ 83 (“[I]n
determining the sufficiency of evidence, the law makes no
distinction between direct and circumstantial evidence.”); see also
People v. Yascavage,
80 P.3d 899, 902 (Colo. App. 2003) (“A
defendant’s mental state may be inferred from his or her conduct
and other evidence.”), aff’d,
101 P.3d 1090 (Colo. 2004).
¶ 47 Casper contends that the evidence was insufficient to show
that he knowingly made a credible threat to B.O. because he sent
the emails with the intent to get help filing a lawsuit; he did not
own a gun; and in his emails, he said that he was miles away and
asking about a job or housing. These facts could lead a reasonable
mind to conclude that Casper did not knowingly make credible
threats to B.O. through the emails. But it’s inconsequential that
evidence could have led the jury to a different result. See People v.
Oliver,
2020 COA 150, ¶ 6 (“A conviction will not be set aside merely
25
‘because a different conclusion might be drawn from the evidence.’”
(quoting People v. Tumbarello, 623 P.2d 46, 49 (Colo. 1981))). We
need only determine if sufficient evidence was admitted at trial to
support Casper’s conviction. In this case, viewing the evidence in
the light most favorable to the People, see Donald, ¶ 18, we
conclude that there was sufficient evidence to support Casper’s
stalking conviction. Accordingly, we decline to vacate Casper’s
stalking conviction on sufficiency of the evidence grounds.
b. Harassment Conviction
¶ 48 We next address Casper’s contention that the prosecution
introduced insufficient evidence at trial to support his harassment
conviction. The People argue that Casper either waived this
challenge or invited the error because, at trial, his counsel conceded
his guilt on the harassment charge. We decline to address the
People’s waiver and invited error arguments, however, because we
conclude there was sufficient evidence to support Casper’s
harassment conviction. Cf. In re Marriage of Mack, 2022 CO 17,
¶ 12 (assuming a party preserved an issue for appeal and
proceeding to the merits because the party’s argument was
“unavailing”).
26
¶ 49 Casper’s argument narrowly focuses on whether there was
sufficient evidence of his mental state. Thus, we limit our analysis
to this point. Casper contends that there was insufficient evidence
to support a finding that he sent the April 2020 emails with the
“conscious objective” to threaten B.O. But the jury did not need to
make such a specifically worded finding to convict Casper of
harassment. Rather, the jury needed to find, and did find, that,
“with intent to harass, annoy, or alarm” B.O., Casper sent the April
2020 emails “in a manner intended to . . . threaten bodily injury.”
§ 18-9-111(1)(e).
¶ 50 Viewing the evidence as a whole and in the light most
favorable to the prosecution, there was substantial and sufficient
evidence to support a conclusion by a reasonable mind that Casper
sent the April 2020 emails with the requisite intent.
¶ 51 First, the evidence supports the conclusion that Casper sent
the emails to B.O. with the intent to harass, annoy, or alarm B.O.
In April 2020, Casper sent B.O. at least twenty-six emails, many of
which referenced violence, bodily injury, and lethal weapons.
Further, Casper knew that his emails to B.O. were unwelcome.
B.O. never responded to Casper’s emails, and Casper had
27
previously been charged with harassment after sending B.O. emails
in 2018. In his victim impact statement regarding the harassment
charge for the 2018 emails, B.O. said, “I do feel . . . harassed and
want the unsolicited communication to stop permanently.”
Additionally, the April 2020 emails that Casper sent directly to B.O.
contained numerous statements that a reasonable mind could
construe as threatening bodily injury because the statements
referenced guns, lengths of rope, and physical violence.
¶ 52 Second, there was sufficient evidence to support a finding that
Casper intended to threaten B.O. Although Casper emailed B.O. in
2018, the 2020 emails marked an escalation in Casper’s threats to
B.O. This, in combination with evidence showing that Casper sent
the emails to B.O. shortly following Casper’s release by the
Department of Corrections, at a time when he was angry with B.O.,
could support a conclusion by a reasonable mind that Casper
intended to threaten B.O. Again, that a reasonable mind might
have drawn a different conclusion from the evidence presented is
inconsequential. See Oliver, ¶ 6.
¶ 53 This evidence, “when viewed as a whole and in the light most
favorable to the prosecution, [wa]s substantial and sufficient to
28
support a conclusion by a reasonable mind,” Donald, ¶ 18 (quoting
Clark, 232 P.3d at 1291), that Casper was guilty of harassment
beyond a reasonable doubt. Accordingly, we decline to vacate his
harassment conviction on sufficiency of the evidence grounds.
C. Merger
¶ 54 Finally, Casper contends that his harassment conviction
should merge into his stalking conviction because both convictions
stem from the April 2020 emails. We disagree.
1. Legal Principles and Standard of Review
¶ 55 Under the Double Jeopardy Clauses in the United States and
Colorado Constitutions, “an accused shall not be twice placed in
jeopardy for the same offense.” Reyna-Abarca v. People, 2017
CO 15, ¶ 49 (citing U.S. Const. amends. V, XIV; Colo. Const. art. II,
§ 18). This protects an accused from “suffering multiple
punishments for the same offense.” Id. The General Assembly
may, however, “authoriz[e] multiple punishments based on the
same criminal conduct.” Friend v. People,
2018 CO 90, ¶ 14.
¶ 56 Under these principles, if a defendant’s conduct “establishes
the commission of more than one offense, the defendant may be
prosecuted for each such offense.” § 18-1-408(1), C.R.S. 2024. But
29
the defendant cannot be convicted of more than one offense if “[o]ne
offense is included in the other, as defined in subsection (5) of this
section.” § 18-1-408(1)(a).
¶ 57 Pursuant to section 18-1-408(5)(a),
A defendant may be convicted of an offense
included in an offense charged in the
indictment or the information. An offense is so
included when . . . [i]t is established by proof
of the same or less than all the facts required
to establish the commission of the offense
charged.
¶ 58 The Colorado Supreme Court has “adopted the ‘subset’ test to
evaluate whether an offense is a lesser included offense of another
offense under section 18-1-408(5)(a).” Thomas v. People, 2021 CO
84, ¶ 24 (quoting Reyna-Abarca, ¶ 64). In adopting this test, it held
that “an offense is a lesser included offense of another offense if the
elements of the lesser offense are a subset of the elements of the
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.”
Reyna-Abarca, ¶ 64; see also Thomas, ¶ 24. But “[t]o the extent
that a lesser offense is statutorily defined in disjunctive terms,
effectively providing alternative ways of being committed, any set of
elements sufficient for commission of that lesser offense that is
30
necessarily established by establishing the statutory elements of a
greater offense constitutes an included offense.” People v. Snider,
2021 COA 19, ¶ 59 (alteration in original) (quoting People v. Rock,
2017 CO 84, ¶ 16).
¶ 59 We review de novo whether two convictions must merge.
Thomas, ¶ 19. If “a defendant establishes that a trial court entered
multiplicitous punishments in violation of double jeopardy
principles, merger is the remedy.” Whiteaker v. People,
2024 CO 25,
¶ 24.
2. The Convictions Do Not Merge
¶ 60 Casper contends that the stalking and harassment convictions
must merge because harassment via electronic threat is a “logical
subset” of stalking – credible threat. Casper’s appeal only concerns
section 18-1-408(5)(a), so this is where we focus our analysis.
¶ 61 An analysis of Casper’s stalking and harassment convictions
reveals that merger is not required.
¶ 62 A person commits stalking under section 18-3-602(1)(a) if
directly, or indirectly through another person,
the person knowingly . . . [m]akes a credible
threat to another person and, in connection
with the threat, repeatedly follows,
approaches, contacts, or places under
31
surveillance that person, a member of that
person’s immediate family, or someone with
whom that person has or has had a continuing
relationship.
¶ 63 A person commits harassment under section 18-9-111(1)(e) if,
with intent to harass, annoy, or alarm another
person, he or she . . . [d]irectly or indirectly
initiates communication with a person or
directs language toward another person,
anonymously or otherwise, by telephone,
telephone network, data network, text
message, instant message, computer,
computer network, computer system, or other
interactive electronic medium in a manner
intended to . . . threaten bodily injury.
¶ 64 A close review of the elements set forth in these statutes shows
that harassment under section 18-9-111(1)(e) is not a lesser
included offense of stalking under section 18-3-602(1)(a) because
this subsection of harassment contains elements that are not
included in the elements of stalking – credible threat.
¶ 65 First, under section 18-9-111(1)(e), harassment requires that
the defendant initiate communication “with intent to harass, annoy,
or alarm another person.” (Emphasis added.) There is no such
requirement for stalking – credible threat. See § 18-3-602(1)(a).
¶ 66 Second, the requisite mens rea the defendant must possess in
making a threat is different in the two statutes. Stalking requires
32
that the defendant “knowingly . . . [m]ake[] a credible threat to
another person.” § 18-3-602(1)(a) (emphasis added). Conversely,
harassment requires that the defendant “intended to . . . threaten
bodily injury.” § 18-9-111(1)(e) (emphasis added). At a basic level,
this would seem to preclude the merger of Casper’s convictions.
But a disparity in mental state between two offenses does not
always mean that the convictions cannot merge. For example, in
Snider, ¶¶ 60-63, a division of this court determined that an offense
with a mens rea of “knowingly” was a lesser included offense of an
offense with a mens rea of “with intent.” But in Snider, the division
concluded that an offense with a less culpable mental state could
merge into an offense with a more culpable mental state. Id. at
¶¶ 55, 60-63. This is different from the issue we address here.
“[W]ith intent” is a more culpable mental state than “[k]nowingly.”
People v. Suazo, 867 P.2d 161, 165 (Colo. App. 1993); People v.
Wade,
2024 COA 13, ¶ 23. And as the division noted in Snider, “if
one has acted ‘with intent,’ one has necessarily acted ‘knowingly.’”
Snider, ¶ 63. But the opposite is not necessarily true. We cannot
say that, because a person acted knowingly, the person necessarily
also acted with intent. Thus, an offense requiring a more culpable
33
mental state (harassment) cannot automatically be a lesser
included offense of an offense requiring a less culpable mental state
(stalking).
¶ 67 Because the subsection of the harassment statute under
which Casper was convicted does not contain only those elements
included in the subsection of the stalking statute under which he
was convicted, his harassment conviction is not a lesser included
offense and the convictions do not merge.
III. Disposition
¶ 68 The district court’s judgment of conviction is affirmed.
JUDGE LIPINSKY and JUDGE GOMEZ concur.
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