People v. Morris.
2025 COA 15. No. 23CA1927. Stalking—First Amendment—Freedom of Speech—Defendant’s Actions—Sufficiency of Evidence.
February 6, 2025
Morris had an intimate relationship with the victim. After their relationship ended, Morris and the victim remained friends, but the victim later told Morris to leave her alone and to stop communicating with her. Morris continued to contact the victim in person and through text messages and phone calls, and he also used another person’s phone to call the victim after she blocked his phone number. Although Morris did not utter threatening words, the victim said his behavior frightened her. Morris was charged with stalking in violation of CRS § 18-3-602(1)(c). The trial court deleted the reference to “communication” from the elemental stalking jury instruction based on a concern that the stalking charge could implicate Morris’s First Amendment free speech right. At the conclusion of the prosecution’s case, Morris moved for a judgment of acquittal, which the court granted as to the part of the charge arising from Morris’s repeated contacts with the victim. 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 serious emotional distress. The jury acquitted Morris.
On appeal, the People argued that the court erred by granting Morris’s motion for judgment of acquittal. In Counterman v. Colorado, 600 U.S. 66 (2023), the US Supreme Court held that courts must consider a defendant’s First Amendment free speech right in prosecutions based on the utterance of threatening statements under CRS § 18-3-602(1)(c), Colorado’s stalking statute. Under Counterman, a conviction for violating the stalking statute by making “true threats” requires proof that the defendant was aware that others could regard the statements as threatening violence and that they made the statement regardless. In applying Counterman to Morris’s actions, the court noted that a communication that is not a true threat is protected under the First Amendment, so knocking on a door while asking to speak to another person is protected speech. 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 Morris’s statements that the victim described were not true threats, and the People failed to provide evidence that Morris consciously disregarded a substantial and unjustifiable risk that his conduct would cause the victim harm. The court of appeals considered whether the Supreme Court’s Counterman analysis applies to stalking prosecutions based on a defendant’s actions and held that a stalking prosecution premised on acts constituting approaching or contacting the victim does not implicate the First Amendment, because such prosecution is not premised on the content of the defendant’s speech. Here, by narrowing the stalking instruction, the jury was not allowed to convict Morris of stalking for saying, “Will you talk to me?” “Can we talk?” and “Can I get my passcode back?” as he banged on the victim’s door and yelled at her. Accordingly, the court erred by granting Morris’s motion for judgment of acquittal.
The ruling was disapproved.