People v. Morris

     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
                                                            February 6, 2025

                                

No. 23CA1927, People v. Morris — Crimes — Stalking;
Constitutional Law — First Amendment — Freedom of Speech

     In Counterman v. Colorado, 

 (2023), the United

States Supreme Court held that courts must consider a defendant’s

First Amendment right of free speech in prosecutions premised on

the utterance of threatening statements under Colorado’s stalking

statute, section 18-3-602(1)(c), C.R.S. 2024. In this case, a division

of the court of appeals considers whether the Supreme Court’s

Counterman analysis applies to stalking prosecutions premised on

the defendant’s actions rather than on the defendant’s threats. The

division holds that a stalking prosecution premised on acts

constituting approaching or contacting the victim does not implicate

the First Amendment because it is not premised on the content of

the defendant’s speech.
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 23CA1927
Mesa County District Court No. 22CR955
Honorable Brian J. Flynn, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Daniel Corey Morris,

Defendant-Appellee.


                            RULING DISAPPROVED

                                    Division I
                          Opinion by JUDGE LIPINSKY
                       Sullivan and Taubman*, JJ., concur

                          Announced February 6, 2025


Daniel P. Rubinstein, District Attorney, Susan Manown, Deputy District
Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

No Appearance for Defendant-Appellee

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Lane Towery, Assistant Attorney General Fellow, Denver, Colorado, for Amici
Curiae Colorado Attorney General’s Office and Colorado District Attorney’s
Council

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Amicus Curiae Office of the State
Public Defender

The Noble Law Firm LLC, Heidi Tripp, Lakewood, Colorado, for Amicus Curiae
Colorado Criminal Defense Bar
Lindy Frolich, Alternate Defense Counsel, Denver, Colorado, for Amicus Curiae
Office of the Alternate Defense Counsel


*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    In Counterman v. Colorado, 

 (2023), the United

 States Supreme Court held that courts must consider a defendant’s

 First Amendment right of free speech in prosecutions premised on

 the utterance of threatening statements under Colorado’s stalking

 statute, section 18-3-602(1)(c), C.R.S. 2024. To ensure that the

 defendant’s speech is accorded sufficient protection, the Court held

 that a defendant can be convicted for making threats only if the

 defendant acted recklessly — in other words, if the defendant

 “consciously disregard[ed] a substantial [and unjustifiable] risk that

 [his] conduct will cause harm to another.” Counterman, 

-80 (quoting Voisine v. United States, 

 (2016)).

¶2    Thus, a conviction for violating the stalking statute by making

 “true threats” cannot stand unless the defendant was “aware ‘that

 others could regard his statements as’ threatening violence and [the

 defendant] ‘deliver[ed] them anyway.” 

 at 79 (quoting Elonis v.

 United States, 

 (2015) (Alito, J., concurring in part

 and dissenting in part)). The Court thus vacated the decision of a

 division of this court and remanded for review of Counterman’s

 conviction under a recklessness standard. Id. at 82-83.




                                   1
¶3    In this case, we consider whether the Supreme Court’s

 Counterman analysis applies to stalking prosecutions premised on

 the defendant’s actions — specifically, following the victim to her

 place of work or home and repeatedly attempting to get her

 attention after she told the defendant to leave her alone — rather

 than on the defendant’s threats.

¶4    Out of concern that the stalking charge against defendant

 Daniel Corey Morris could implicate speech protected by the First

 Amendment, as discussed in Counterman, the trial court deleted the

 reference to “communication” from the elemental stalking jury

 instruction (the stalking instruction) and then partially granted

 Morris’s motion for a judgment of acquittal over the prosecutor’s

 objection. Specifically, the court granted the motion as to the part

 of the charge arising from Morris’s repeated contacts with the

 victim. In addition, the court limited the jury’s consideration of the

 possible acts that could constitute the charged offense to whether

 Morris repeatedly approached the victim. The jury acquitted

 Morris.

¶5    The People appeal the court’s decision to restrict the jury’s

 consideration to whether Morris repeatedly approached the victim


                                    2
 in a manner that would cause a reasonable person to suffer serious

 emotional distress and whether he caused the victim serious

 emotional distress. They do not appeal the court’s revisions to the

 stalking instruction. In this appeal, the People assert that, because

 the conduct for which Morris was tried did not implicate the content

 of his speech, the court erroneously applied the Supreme Court’s

 Counterman analysis. Our jurisdiction to consider the People’s

 appeal derives from section 16-12-102(1), C.R.S. 2024.

¶6    Because Morris did not file a brief, we solicited amicus briefs.

 We received an amicus brief from the Colorado Attorney General’s

 Office and the Colorado District Attorney’s Council. We received a

 second amicus brief from the Colorado State Public Defender,

 Colorado Criminal Defense Bar, and Alternate Defense Counsel.

¶7    We agree with the People and disapprove of the court’s ruling.

 We hold that a stalking prosecution premised on acts constituting

 approaching or contacting the victim does not implicate the First

 Amendment because it is not premised on the content of the

 defendant’s speech or expressive conduct.




                                   3
               I.    Background and Procedural History

¶8     Morris and the victim were in an intimate relationship and at

  one time lived together. After their relationship ended and Morris

  moved out of the victim’s home, Morris and the victim remained

  friends.

¶9     Several months later, the victim told Morris to leave her alone

  and to stop communicating with her. Morris, however, continued to

  contact the victim in person and through text messages and phone

  calls and used someone else’s phone to call her after she blocked

  his phone number.

¶ 10   Morris was charged with stalking in violation of section

  18-3-602(1)(c). The charging document alleged that Morris

  repeatedly “followed, approached, contacted, placed under

  surveillance, or made any form of communication with [the victim],

  in a manner that would cause a reasonable person to suffer serious

  emotional distress, and caused [the victim] serious emotional

  distress.”

¶ 11   At trial, the victim testified that she saw Morris drive his truck

  into the driveway of the studio where she worked as a glass artist.

  Upon seeing Morris, she turned off her equipment, locked the


                                    4
  doors, and hid in the bathroom. Morris began aggressively banging

  on the front door. He yelled at her to talk to him, uttering short

  phrases such as “Will you talk to me?” “Can we talk?” and “Can I

  get my passcode back?” The banging stopped after about four or

  five minutes. Thinking Morris had left, the victim started to go back

  to her studio but stopped and retreated to the bathroom when

  Morris resumed banging on the door and yelling at her.

¶ 12   After the banging stopped a second time, she looked outside.

  When she did not see Morris’s truck, she returned to her

  workspace, which faced a window. Morris, however, was apparently

  hiding beneath the windowsill immediately in front of the victim’s

  workspace and startled her by appearing in the window while she

  was at her desk. He repeatedly asked her to talk to him. She told

  him multiple times to go away and that he needed to leave.

¶ 13   After Morris finally left, the victim went home and called the

  police to report Morris’s behavior. Before the police could contact

  Morris, however, he showed up at the victim’s home and knocked

  loudly on her door and yelled at her to talk to him. Although Morris

  did not utter threatening words, the victim said his behavior

  frightened her.


                                    5
¶ 14   At the conclusion of the prosecution’s case, Morris moved for a

  judgment of acquittal, arguing that the prosecution had not

  presented any evidence that he “consciously disregarded a

  substantial risk that his words to [the victim] would cause a

  reasonable person to suffer serious emotional distress.” In

  response, the prosecutor asserted that the case involved not just

  communications, but also Morris’s actions of approaching and

  contacting the victim. The prosecutor emphasized that, unlike

  Counterman, the case against Morris was not premised on “true

  threats” because the victim testified “she was not threatened.”

¶ 15   The court initially agreed with the prosecutor and denied

  Morris’s motion for judgment of acquittal. But the court deleted the

  reference to “communication” in the stalking instruction, “given the

  Counterman case,” based on the court’s concern that the charge

  against Morris implicated protected speech as well as conduct. A

  few minutes later, however, the court reconsidered its ruling,

  explaining that it believed Morris’s statements to the victim were

  protected speech. The prosecutor objected and argued that Morris’s

  contact with the victim did not involve protected speech and that

  the evidence of contact was Morris approaching her studio and her


                                    6
  home, banging on the door, yelling at her (regardless of what he was

  yelling), and popping up at her window.

¶ 16   The court disagreed. The court noted that the evidence

  regarding the contact part of the charge involved Morris saying

  things to the victim like, “Will you talk to me?” The court found

  that such statements constituted protected speech under

  Counterman.

¶ 17   Accordingly, the court granted Morris a judgment of acquittal

  on the contact portion of the charge. The court found that, “given

  the evidence in this case with regard to their [sic] being contact by

  way of speech,” even when viewing the evidence in the light most

  favorable to the prosecution, there was “insufficient evidence to

  show that [Morris] would have recklessly made such statements

  that would cause a reasonable person to suffer serious emotional

  distress.” The court found, however, that Counterman did not apply

  to the approach part of the charge because it did not rely on any

  speech.

¶ 18   Thus, the court limited the jury’s consideration of the stalking

  charge to whether Morris knowingly and repeatedly approached the

  victim in a manner that would cause a reasonable person to suffer


                                     7
  serious emotional distress. The jury found Morris not guilty of that

  charge.

                              II.   Analysis

¶ 19   The People appeal the court’s decision to grant Morris’s motion

  for judgment of acquittal but not the court’s deletion of the

  reference to “communication” from the stalking instruction or the

  court’s finding there was insufficient evidence to establish that

  Morris recklessly made statements that would cause a reasonable

  person to suffer serious emotional distress. Thus, our analysis

  focuses on whether the court erred by granting Morris’s motion for

  judgment of acquittal.

                        A.    Standard of Review

¶ 20   We review de novo the constitutionality of a statute as applied

  to an individual. People v. Chase, 

, ¶ 65, 

. We likewise review a district court’s interpretation of case

  law and statutes de novo. Whiteaker v. People, 

, ¶ 9,

  

, 1125; People v. Rieger, 

, 

.

¶ 21   “In construing a statute, our primary purpose is to ascertain

  and give effect to the legislature’s intent.” McCoy v. People, 2019


                                    

, ¶ 37, 

. “To do so, we look first to the

  language of the statute, giving its words and phrases their plain

  and ordinary meanings.” 

 We read and consider the statutory

  scheme as a whole and strive “to give consistent, harmonious, and

  sensible effect to all its parts.” People v. Apodaca, 

 (Colo. App. 2002).

               B.   The Stalking Statute and Counterman

¶ 22   A person commits the offense of stalking by “[r]epeatedly

  follow[ing], approach[ing], contact[ing], plac[ing] under surveillance,

  or mak[ing] any form of communication with another person . . . in

  a manner that would cause a reasonable person to suffer serious

  emotional distress and does cause that person . . . to suffer serious

  emotional distress.” § 18-3-602(1)(c).

¶ 23   Counterman was charged with stalking after he sent the victim

  numerous Facebook messages, in textual and photographic form,

  over a two-year period. People v. Counterman, 

, ¶¶ 11,

  16, 

, 1043-44, vacated, 

 (2023). When

  the victim blocked Counterman’s communications, he created new

  accounts and resumed sending messages. Id. at ¶ 6, 497 P.3d at

  1043. Some of the communications indicated that Counterman


                                     9
  had been surveilling the victim and, in at least one message,

  Counterman said he wanted the victim to die. Id. at ¶ 7, 497 P.3d

  at 1043. Counterman was convicted as charged with of one count

  of stalking (severe emotional distress) in violation of section

  18-3-602(1)(c). Id. at ¶¶ 12-13, 497 P.3d at 1043-44.

¶ 24   In Counterman’s appeal in this court, the division applied an

  objective test to conclude that Counterman’s repeated electronic

  messages were “true threats” and thus unprotected speech under

  the First Amendment of the United States and article II, section 10,

  of the Colorado Constitution. Id. at ¶¶ 29-30, 53, 497 P.3d at 1046,

  1049. Although the Colorado Supreme Court denied Counterman’s

  petition for a writ of certiorari, Counterman v. People, (Colo. No.

  21SC650, Apr. 11, 2022) (unpublished order), the United States

  Supreme Court granted certiorari to decide “(1) whether the First

  Amendment requires proof of a defendant’s subjective mindset in

  true-threats cases, and (2) if so, what mens rea standard is

  sufficient.” Counterman, 

.

¶ 25   The Supreme Court began its analysis in Counterman by

  acknowledging that not all types of communications receive First

  Amendment protection, specifically recognizing that “[t]rue threats


                                     10
  of violence, everyone agrees, lie outside the bounds of the First

  Amendment’s protection.” 

 The Court then considered when a

  communication is a “true threat” for which a defendant can be

  convicted without infringing on the defendant’s First Amendment

  rights.

¶ 26   The Court noted that the determination of whether a

  defendant can be convicted for making a “true threat” under the

  stalking statute depends not on the defendant’s mental state, but

  on what the statement conveys to the recipient of the

  communication. 

 The Court explained that, while the First

  Amendment generally protects a person’s ability to speak freely,

  true threats of violence are outside the bounds of First Amendment

  protection. 

. But the Court’s analysis did not stop here.

  The Court said that “the First Amendment may still demand a

  subjective mental-state requirement shielding some true threats

  from liability. The reason relates to what is often called a chilling

  effect. Prohibitions on speech have the potential to chill, or deter,

  speech outside their boundaries.” 

.

¶ 27   The Court concluded that, consistent with the First

  Amendment’s protections for speech, a person cannot be criminally


                                    11
  convicted for making a threat absent proof that the defendant had

  some subjective understanding of the threatening nature of the

  defendant’s statement. 

. The Court held that a

  recklessness standard — a showing that a person consciously

  disregards a substantial and unjustifiable risk that the defendant’s

  conduct will cause harm to another — is the minimum mens rea to

  support a prosecution premised on the utterance of a threat. 

. Thus, in a prosecution under section 18-3-602(1)(c) for

  stalking based on a communication, the Court held that the First

  Amendment requires the prosecution to prove that the defendant

  (1) had some subjective understanding of the threatening nature of

  the defendant’s statements and (2) recklessly made such

  statements by consciously disregarding a substantial risk that the

  communications would be viewed as threatening violence.

  Counterman, 

.

¶ 28   In Counterman, the Court cited its jurisprudence protecting

  conduct that communicates a message, as well as its decisions

  articulating the limited categories of conduct that, while expressive,

  receive no First Amendment protection. Compare, e.g., Texas v.

  Johnson, 

 (1989) (holding that the act of burning


                                    12
an American flag is protected expressive conduct), and Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 

 (1969) (holding

that the First Amendment protects expressive conduct in the form

of wearing black armbands to protest the United States’

involvement in the Vietnam war), and Brown v. Louisiana, 

 (1966) (holding that Black protesters’ sit-in in a

“whites only” area to protest segregation is protected under the First

and Fourteenth Amendments’ guarantees of freedom of speech and

assembly and the freedom to petition the government for a redress

of grievances), with Counterman, 

 (noting the “few

limited areas” in which the First Amendment “permit[s] restrictions

upon the content of speech,” such as “incitement — statements

‘directed [at] producing imminent lawless action,’ and likely to do

so”; “defamation — false statements of fact harming another’s

reputation”; and “obscenity — valueless material ‘appeal[ing] to the

prurient interest’ and describing ‘sexual conduct’ in ‘a patently

offensive way’” (first quoting United States v. Stevens, 

 (2010); then quoting Brandenburg v. Ohio, 

(1969) (per curiam); and then quoting Miller v. California, 

 (1973))). These cases teach that any attempt to draw a


                                  13
  bright line between conduct or speech — whether in the context of

  Colorado’s stalking statute or elsewhere — is a perilous task and

  that we must closely scrutinize whether a statute seeks to

  criminalize expressive conduct.

                  C.   The Court’s Decision to Grant
                  Morris’s Motion for Judgment of Acquittal

¶ 29   In applying Counterman to Morris’s actions, the court noted

  that any communication that is not a “true threat” is protected

  speech under the First Amendment. Thus, the court reasoned that

  knocking on a door while asking to speak to another person is

  protected speech to which the recklessness mens rea standard

  discussed in Counterman applies. Consequently, the court

  concluded there was insufficient evidence to allow the jury to

  consider whether Morris’s contact with the victim violated the

  stalking statute because (1) Morris’s statements that the victim

  described were not “true threats,” and (2) the People had not

  provided any evidence that Morris consciously disregarded a

  substantial and unjustifiable risk that his conduct would cause the

  victim harm.




                                    14
                  D. The Court Erred by Dismissing
                   the Contact Part of the Stalking Charge

¶ 30   We begin by reiterating that Counterman applies to speech-

  based stalking prosecutions. Counterman concerned a stalking

  charge premised on repeated communications that implicated

  speech protected by the First Amendment and did not address any

  of the other forms of stalking under section 18-3-602(1)(c). Thus,

  the Court’s articulation of a subjective standard for determining

  whether an actor had some understanding of the threatening

  nature of the actor’s statements, yet nevertheless consciously

  disregarded a substantial and unjustifiable risk that the conduct

  would cause harm to another, applies only in the context of a

  stalking conviction premised on the content of a communication or

  expressive conduct. See State v. Labbe, 

, 

, 178-79 (noting that Counterman narrowly framed the

  issue as to whether the First Amendment required the State to

  prove a defendant’s subjective mens rea in a true threats case

  where the content of the defendant’s speech was the central focus of

  the inquiry).




                                   15
¶ 31   As explained above, the crime of stalking can be accomplished

  when an actor “[r]epeatedly follows, approaches, contacts, places

  under surveillance, or makes any form of communication” with

  another person, when such action would cause a reasonable person

  to suffer serious emotional distress and does cause that person to

  suffer serious emotional distress. § 18-3-602(1)(c). By listing

  alternative ways to commit the offense and connecting those

  methods by using the disjunctive conjunction “or,” the General

  Assembly intended each of those methods to describe a different

  way to commit the offense. Friend v. People, 

, 

 (noting that, when the General Assembly joins

  “alternatives disjunctively in a single provision of the criminal code,”

  it intended to “describe alternate ways of committing a single crime

  rather than to create separate offenses” (quoting People v. Abiodun,

  

 (Colo. 2005))); see Armintrout v. People, 

 (Colo. 1993) (“[W]hen the word ‘or’ is used in a statute, it

  is presumed to be used in the disjunctive sense, unless legislative

  intent is clearly to the contrary.”).

¶ 32   As Justice Sotomayor recognized in her partial concurrence in

  Counterman, a prosecution for stalking causing serious emotional


                                      16
  distress that is based on repeated unwanted contact does not

  depend on the content of the communication and, thus, raises

  fewer First Amendment concerns than does a prosecution premised

  on the content of the defendant’s communications. Counterman,

  

 (Sotomayor, J., concurring in part). Although

  such conduct may be accompanied by utterances, a defendant’s

  “repeated unwanted contact[s],” 

 are not necessarily “sufficiently

  imbued with elements of communication to fall within the scope of

  the First and Fourteenth Amendments,” Spence v. Washington, 

 (1974).

¶ 33   Thus, because stalking that causes serious emotional distress

  in violation of section 18-3-602(1)(c) does not always require proof

  that the accused engaged in the type of communication or

  expressive conduct that implicates the First Amendment, we

  conclude that Counterman does not apply to stalking prosecutions

  not premised on the content of the defendant’s communication or

  expression. See Labbe, ¶ 50, 314 A.3d at 179 (recognizing that,

  although some stalking prosecutions may rely in whole or in part

  on words used by a defendant to establish the course of conduct

  and consequent effect upon the victim, Counterman’s requirement


                                    17
  to prove a subjective mens rea of recklessness only applies when

  the prosecution relies on the content of a defendant’s expression as

  the basis for a stalking charge and to establish the victim’s harm);

  see also Giboney v. Empire Storage & Ice Co., 

  (1949) (“[I]t has never been deemed an abridgement of freedom of

  speech or press to make a course of conduct illegal merely because

  the conduct was in part initiated . . . or carried out by means of

  language . . . .”).

¶ 34    As noted above, the court narrowed the stalking instruction to

  exclude any of Morris’s communications to the victim. For this

  reason, had the court not granted Morris’s motion for judgment of

  acquittal, the jury could have convicted Morris based on his

  conduct toward the victim but not on his communications to her.

  Yet the court concluded that its revision of the stalking instruction

  a few minutes earlier was insufficient to avoid a potential violation

  of Morris’s First Amendment rights through a conviction based on

  words he uttered to the victim.

¶ 35    The 1999 amendment to the stalking statute that added

  “approaches, contacts, or places under surveillance” to the types of

  conduct that can constitute stalking supports our conclusion. See


                                    18
  Ch. 215, sec. 1, § 18-9-111(4)(b)(I), 

-94

  (repealed and relocated to section 18-3-602, C.R.S. 2010, effective

  Aug. 11, 2010). Before that amendment, the stalking statute

  addressed only situations where a person made a credible threat

  and, in connection with that threat, either repeatedly followed or

  made some form of communication with that person. People v.

  Burgandine, 

, 

; see also

  People v. Miller, 

, ¶ 46, 

, 1270. In

  adding the “approaches, contacts, or places under surveillance”

  language, the General Assembly expanded the statute to cover

  additional types of stalking conduct. Burgandine, ¶¶ 18, 24, 

 (noting that, by adding the subsection addressing

  emotional distress stalking and including both “contacts” and “any

  form of communication,” the General Assembly intended to capture

  all stalking conduct by using such a broad term as “contacts,” when

  arguably such word subsumed the “any form of communications”

  phrase already contained in the statute).

¶ 36   The case against Morris, as it went to the jury, was premised

  exclusively on his actions, not on the content of his

  communications to the victim. By narrowing the stalking


                                    19
  instruction, the court ensured that Morris could not be convicted

  based on protected communications. At that stage of the trial, the

  stalking charge was solely premised on Morris’s acts of banging on

  the door of the victim’s studio, the volume of Morris’s screams, and

  his attempts to force the victim to come to the door. The

  instruction the court provided the jury did not permit it to convict

  Morris of stalking for saying, “Will you talk to me?” “Can we talk?”

  and “Can I get my passcode back?” as he pounded on the door and

  yelled at the victim. Thus, the precise words Morris uttered to the

  victim were no more relevant to whether he stalked the victim than

  the defendant’s utterance of “bang, bang” before shooting the victim

  was relevant to the first degree murder charge in People v. Perez,

  

, 

.

¶ 37   Accordingly, we conclude that the court erred by requiring the

  prosecution to prove the recklessness element contemplated in

  Counterman when seeking a conviction based on Morris’s repeated

  contacts with the victim. Although the evidence elicited at trial

  included words that Morris spoke while engaging in the charged

  conduct, the instruction the court gave made clear that the stalking

  charge against Morris was not predicated on the content of his


                                    20
  communications. It was based solely on Morris’s actions, not his

  words. As a result, the court should not have required the

  prosecution to prove that Morris consciously disregarded a

  substantial and unjustifiable risk that his repeated contacts with

  the victim would cause her harm.

                            III.   Disposition

¶ 38   We disapprove of the court’s ruling.

       JUDGE SULLIVAN and JUDGE TAUBMAN concur.




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