People v. Casper.
2025 COA 69. No. 21CA1104. Stalking—Harassment—Credible Threat—Mens Rea—Knowingly—First Amendment Freedom of Speech—True Threats—Sufficiency of Evidence—Merger of Convictions.
July 31, 2025
In 2017, police officers B.O. and B.V. apprehended Casper on suspicion of burglary, theft, and trespassing, and they placed him in a police car. Casper repeatedly unfastened his seatbelt, so B.O. applied a pain compliance technique twice. In 2018, Casper sent a series of emails to B.O. and others complaining about the use of the pain compliance technique. Casper was charged with harassment in connection with the emails, but the charges were later dismissed. In 2019, Casper was found guilty of burglary and theft, and the district court sentenced him to 30 months in Department of Corrections’ custody. B.O. testified at that trial. In 2020, Casper was released from custody, and shortly thereafter, he sent a series of threatening emails to B.O. As relevant here, Casper was charged with stalking—credible threat, in violation of CRS § 18-3-602(1)(a), and harassment, in violation of CRS § 18-9-111(1)(e). Pretrial, Casper brought an as-applied constitutional challenge to the stalking charge and moved to dismiss that charge, contending that the speech in his emails didn’t constitute a true threat and was therefore protected by the First Amendment. The district court applied the factors in People in Interest of R.D., 2020 CO 44, abrogated by Counterman v. Colorado, 600 U.S. 66 (2023), and found that the speech in Casper’s emails constituted true threats. The court denied the constitutional challenge and the motion, and Casper was convicted as charged. After his trial, the US Supreme Court issued Counterman, which addressed § 18-3-602(1)(c) and abrogated R.D.
On appeal, Casper contended that his stalking and harassment convictions violated his First Amendment rights because his 2020 emails to B.O. were not true threats. First, because Casper conceded at trial that he committed harassment, he waived his First Amendment constitutionality challenge to the harassment conviction. As to the stalking conviction, the Court in Counterman, addressing a different section of the stalking statute than the one at issue here, concluded that a defendant charged with stalking based on “true threats” must have a “subjective understanding” that their statements are threatening, and that a mens rea of recklessness sufficiently demonstrates such understanding. The statute Casper was charged with and found guilty of violating required proof that Casper knowingly made a credible threat to B.O. Given the definition of “knowingly” provided in Counterman, Casper committed stalking under § 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 that his threat/conduct would cause a reasonable person to fear for their safety or the safety of their immediate family. Here, the district court’s findings were constitutionally inadequate under Counterman, because the R.D. test the court applied did not address the mens rea standard. But the error was harmless beyond a reasonable doubt: The instructions were constitutionally adequate because the jury instructions required the jury to make factual findings about Casper’s subjective mental state concerning whether he was making a credible threat against B.O. when he sent the emails. Further, given that the jury finding made in accordance with § 18-3-602(1)(a) does not violate Counterman, Casper’s contention that the statutory definition of “credible threat” under § 18-3-602(2)(b) is facially unconstitutional fails. Accordingly, the convictions stand.
Casper also argued that there was insufficient evidence to support (1) the stalking conviction, because he was not aware that his emails were a credible threat; and (2) the harassment conviction, because he did not have a conscious objective to threaten B.O. First, there was sufficient circumstantial evidence that Casper knew he was making credible threats when he sent the emails, as he acknowledged that he sent them; many of the emails contained references to bodily harm and potentially lethal weapons that could be construed as threatening; and the threat level of Casper’s messages to B.O. escalated over time. Second, there was sufficient evidence both to conclude that Casper sent the emails to B.O. with the intent to harass, annoy, or alarm B.O., and to support a finding that Casper intended to threaten B.O. Therefore, sufficient evidence supported both convictions.
Lastly, Casper asserted that his harassment conviction should merge into his stalking conviction because harassment via electronic threat is a subset of stalking—credible threat. However, harassment under § 18-9-111(1)(e) is not a lesser included offense of stalking under § 18-3-602(1)(a) because this subsection of harassment has elements that are not included in the elements of stalking—credible threat.
The judgment of conviction was affirmed.