People v. Harmon.
2025 COA 38. No. 21CA1443. Sixth Amendment—Confrontation Clause—CRE 804—Sufficiency of Evidence—Hearsay Exceptions—Declarant Unavailable—Former Testimony.
April 10, 2025
In 2014, Harmon contracted with Hershberger Construction, LLC (Hershberger) to erect a steel building on Harmon’s property. Paul and Anna Hershberger owned and operated Hershberger. When the contract was signed, Harmon was unsure where he wanted to locate the building, so the parties agreed to store it at Hershberger’s headquarters, which was across the street from Paul and Anna’s residence. In 2015, the parties’ relationship deteriorated over Harmon’s uncertainty about erecting the building and project delays. Harmon threatened to kill Paul, and in response, Paul sent Harmon a letter that terminated the contract, banned Harmon from the Hershberger property, and gave him until the end of 2015 to have a third party remove the building. The letter also included a check for a partial refund of the contract price. In 2017, Harmon sued Hershberger for breach of contract. Hershberger counterclaimed for damages and lost profits, and it asserted an impossibility of performance defense based on Harmon’s death threat against Paul. The district court found that Harmon’s threat did not excuse Hershberger’s contract performance and ultimately found both parties at fault for nonperformance. It ordered Hershberger to refund a portion of the purchase price and ordered Harmon to remove the steel building from Hershberger’s property within 60 days. Nevertheless, in 2018 Harmon engaged in a series of actions aimed at Paul and Anna, including parking in their driveway and following them to church on multiple occasions. Paul and Anna reported the incidents to the police. In 2019, Anna saw Harmon in their driveway and called the police. Law enforcement stopped Harmon as he drove away from the property and arrested him on suspicion of driving under the influence of alcohol after failing roadside tests. The police seized Harmon’s vehicle and recovered bullets, zip ties, and two loaded guns, one of which was hidden in an empty six-pack container. The police also found an incriminating note in Harmon’s home concerning a shooting. As relevant here, Harmon was charged with attempted first degree murder, stalking (credible threat), and stalking (serious emotional distress).
In 2020, Paul died in an unrelated motorcycle accident. Based on Paul’s unavailability to testify at the criminal trial, the People moved to admit portions of the transcript of Paul’s testimony at the civil case concerning Harmon’s threat. The trial court admitted the testimony over defense counsel’s objection based on its finding that Harmon’s counsel had an opportunity and similar motive to cross-examine Paul about Harmon’s threat during the civil trial. Harmon was convicted of attempted first degree murder and two counts of stalking. He was sentenced to 10 years in community corrections.
On appeal, Harmon argued that there was insufficient evidence for the attempted first degree murder conviction, asserting that the prosecution failed to show that he took a substantial step toward completing first degree murder. However, sufficient evidence supported the jury’s finding that Harmon’s conduct exceeded mere preparation and constituted a substantial step toward committing first degree murder, including Harmon’s statement to a witness that he would shoot Paul and to Deputy Carney that he had threatened to shoot Paul, and Harmon’s handwritten note confirming this intention. And the jury also heard evidence that Harmon had told his wife that he was going to kill the person who had taken money from him. Further, the jury could reasonably have concluded that the hidden handgun or the concealed shotgun and ammunition were part of a plan to murder Paul.
Harmon also argued that there was insufficient evidence for the stalking (credible threat) convictions, maintaining that because he only made one credible threat against Paul in 2015, his conduct almost four years later could not be deemed to be “in connection with” that threat. Here, given Harmon’s actions in repeatedly following Paul and Anna, and his statements about shooting Paul, the jury could reasonably have concluded that his actions were to further his undisputed 2015 credible threat. Accordingly, sufficient evidence supported the stalking convictions.
Harmon further contended that his convictions should be reversed because the trial court violated his right to confrontation under the US and Colorado constitutions. Here, all the arguments and related case law that Harmon submitted below were based on the Confrontation Clause in the US Constitution’s Fourteenth Amendment. And though Harmon argued on appeal for application of Colorado’s confrontation clause in a way to afford a defendant broader protections than those afforded by the Fourteenth Amendment’s Confrontation Clause, the court of appeals declined to consider the constitutional arguments that were undeveloped below. And even if Harmon preserved his state confrontation clause argument, it fails on the merits because Paul’s prior testimony was admissible, given his counsel’s meaningful opportunity to cross-examine Paul about the pertinent testimony at the civil trial.
Harmon also asserted that his convictions should be reversed because the trial court improperly applied CRE 804(1). However, the court determined that where appropriate, prior civil trial testimony may be admitted in a criminal case under Rule 804(b)(1). Here, Harmon’s counsel in the civil trial had substantial motivation to fully examine Paul about the threat, so the criminal court properly admitted Paul’s testimony.
Harmon further argued that his convictions should be reversed because the trial court improperly had a court reporter read the transcript, rather than playing the audio recording of Paul’s testimony. But Harmon cited no legal authority permitting or requiring the use of audio recordings in lieu of the certified record. Therefore, the criminal court did not abuse its discretion by admitting the official transcript of Paul’s testimony rather than the audio recordings.
Harmon also contended that Judge Schultz reversibly erred by failing to recuse himself from the criminal case because he was biased against Harmon or the appearance of bias warranted recusal. Here, when the prosecution learned that Judge Schultz was presiding over the criminal case, it filed a notice that defense counsel later joined requesting that Judge Schultz consider recusal because he had presided over the civil case and the same conduct would be at issue in the criminal case. Judge Schultz declined to recuse himself. However, Harmon waived any recusal argument by not complying with the Crim. P. 21(b) requirements. And even if Harmon had filed a procedurally compliant motion, it would have failed on the merits for lack specific facts indicating actual bias.
Lastly, Harmon argued that the court erred by refusing his counsel’s request that the court instruct the jury on harassment, a lesser nonincluded offense to the stalking charges. Here, however, even if the jury believed Harmon’s purported explanation for following Paul and Anna to church—solely to determine their faith rather than to harass, annoy, or alarm them—no rational basis existed for the jury to convict him of harassment. The trial court thus did not err by declining to instruct the jury on the lesser nonincluded offense of harassment.
The judgment was affirmed.