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People v. Counterman.

2021 COA 97. No. 17CA1465. Stalking—First Amendment—True Threats—Jury Instruction—Simple Variance.

July 22, 2021

Defendant “friended” C.W., a singer-songwriter, on Facebook. Over the next two years, defendant sent clusters of messages to C.W.’s personal and business Facebook accounts in which he threatened C.W. and indicated that he stalked her in person. The jury found defendant guilty of stalking (serious emotional distress) under CRS § 18-3-602(1)(c).

On appeal, defendant argued that CRS § 18-3-602(1)(c) was unconstitutional as applied to his statements because they were protected speech, not unprotected true threats. A “true threat” is a “statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence.” Here, defendant’s statements were true threats and thus constituted unprotected speech under both the US and Colorado Constitutions. Accordingly, CRS § 18-3-602(1)(c) was constitutional as applied to defendant’s unprotected threats.

Defendant also asserted that, even if there was sufficient evidence to prove that he made true threats to C.W., the trial court reversibly erred by failing to instruct the jury on the meaning of true threats. Here, the trial court’s instruction on stalking (serious emotional distress) tracked the model jury instruction for that offense and the language in CRS § 18-3-602(1)(c). Therefore, the trial court didn’t plainly err.

Defendant further contended that the court’s response to a jury question lowered the prosecution’s burden of proof. The trial court’s response told the jury that it could consider evidence that the victim suffered serious emotional distress outside of the timeframe in the charging document. The response was a simple variance, not a constructive amendment, so it didn’t lower the prosecution’s burden of proof.

The conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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