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People v. Pellegrin.

2021 COA 118. No. 18CA1487.  Revenge Porn—Stalking—Harassment—Private Intimate Parts—Sixth Amendment—Lesser included Offense—Domestic Violence.

September 2, 2021

The victim dated defendant. After she ended the relationship, defendant threatened to post private, intimate photos of her online and to send them to her 12-year-old brother. Subsequently, the victim’s Facebook profile was altered to include nude photos of her, and a Craigslist ad posted in her name solicited sex and included her name and phone number, photos showing her face, and directions to her home, and it directed readers to her Facebook page.

Defendant was charged with multiple counts, and a jury returned a verdict. The court polled the jury, and Juror 8 denied that it was her verdict. The court sent the jury back to the jury deliberation room. Defense counsel moved for a mistrial, which the court denied. The next day, the jury deliberated for two hours and returned a verdict convicting defendant of stalking, posting a private image for harassment (Craigslist), and harassment. A second polling confirmed a unanimous verdict. The court sentenced defendant to three years of supervised probation and 90 days in jail. It also made a domestic violence finding and ordered defendant to participate in a domestic violence evaluation and to comply with its recommendations.

On appeal, defendant contended that the trial court abused its discretion by not granting a mistrial after polling revealed that the verdicts were not unanimous. Here, the trial court’s instruction to continue deliberations was not coercive, and the trial court did not abuse its discretion by finding, based on her response to the poll and her demeanor, that Juror 8 was unlikely to be bullied into a guilty verdict. Accordingly, the trial court properly exercised its discretion by declining to declare a mistrial.

Defendant also contended that the stalking statute is unconstitutional on its face because the statute is overbroad. However, the Colorado Supreme Court concluded that a substantially similar stalking statute is not unconstitutionally overbroad, so the stalking statute is facially constitutional.

Defendant further argued that the photos posted in the Craigslist ads insufficiently established the element of “private intimate parts” required for his conviction of posting a private image for harassment. He maintained that the photo showing the side of the victim’s exposed breast is not a photo depicting the “breast of a female” under the CRS § 18-7-107(1)(a) definition of “private intimate parts” because the entire breast was not displayed. However, an image posted for harassment need only display a portion of the female breast. Further, defendant failed to show that the statute is vague and overbroad if “breast of a female” is interpreted to include less than the entire breast.

Defendant also argued that harassment is a lesser included offense of stalking under CRS § 18-1-408(5)(c), so the convictions must merge. However, stalking and harassment differ in the degree of injury or risk of injury, the degree of culpability, and in the class of victims to which they apply. Accordingly, harassment is not a lesser included offense of stalking under CRS § 18-1-408(5)(c).

Defendant further contended that he had a Sixth Amendment right to have a jury, not the trial court, determine whether the crime for which he was convicted included an act of domestic violence. However, a domestic violence finding under CRS § 18-6- 801(1)(a) does not impose a penalty. Therefore, it was not error for the court to decide this issue.

The judgment was affirmed.

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

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