The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 6, 2025
2025COA15
No. 23CA1927, People v. Morris — Crimes — Stalking; Constitutional Law — First Amendment — Freedom of Speech
In Counterman v. Colorado, 600 U.S. 66 (2023), the United
States Supreme Court held that courts must consider a defendant’s
First Amendment right of free speech in prosecutions premised on
the utterance of threatening statements under Colorado’s stalking
statute, section 18-3-602(1)(c), C.R.S. 2024. In this case, a division
of the court of appeals considers whether the Supreme Court’s
Counterman analysis applies to stalking prosecutions premised on
the defendant’s actions rather than on the defendant’s threats. The
division holds that a stalking prosecution premised on acts
constituting approaching or contacting the victim does not implicate
the First Amendment because it is not premised on the content of
the defendant’s speech. COLORADO COURT OF APPEALS 2025COA15
Court of Appeals No. 23CA1927 Mesa County District Court No. 22CR955 Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Daniel Corey Morris,
Defendant-Appellee.
RULING DISAPPROVED
Division I Opinion by JUDGE LIPINSKY Sullivan and Taubman*, JJ., concur
Announced February 6, 2025
Daniel P. Rubinstein, District Attorney, Susan Manown, Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
No Appearance for Defendant-Appellee
Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Lane Towery, Assistant Attorney General Fellow, Denver, Colorado, for Amici Curiae Colorado Attorney General’s Office and Colorado District Attorney’s Council
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Amicus Curiae Office of the State Public Defender
The Noble Law Firm LLC, Heidi Tripp, Lakewood, Colorado, for Amicus Curiae Colorado Criminal Defense Bar Lindy Frolich, Alternate Defense Counsel, Denver, Colorado, for Amicus Curiae Office of the Alternate Defense Counsel
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In Counterman v. Colorado, 600 U.S. 66 (2023), the United
States Supreme Court held that courts must consider a defendant’s
First Amendment right of free speech in prosecutions premised on
the utterance of threatening statements under Colorado’s stalking
statute, section 18-3-602(1)(c), C.R.S. 2024. To ensure that the
defendant’s speech is accorded sufficient protection, the Court held
that a defendant can be convicted for making threats only if the
defendant acted recklessly — in other words, if the defendant
“consciously disregard[ed] a substantial [and unjustifiable] risk that
[his] conduct will cause harm to another.” Counterman, 600 U.S. at
78-80 (quoting Voisine v. United States, 579 U.S. 686, 691 (2016)).
¶2 Thus, a conviction for violating the stalking statute by making
“true threats” cannot stand unless the defendant was “aware ‘that
others could regard his statements as’ threatening violence and [the
defendant] ‘deliver[ed] them anyway.” Id. at 79 (quoting Elonis v.
United States, 575 U.S. 723, 746 (2015) (Alito, J., concurring in part
and dissenting in part)). The Court thus vacated the decision of a
division of this court and remanded for review of Counterman’s
conviction under a recklessness standard. Id. at 82-83.
1 ¶3 In this case, we consider whether the Supreme Court’s
Counterman analysis applies to stalking prosecutions premised on
the defendant’s actions — specifically, following the victim to her
place of work or home and repeatedly attempting to get her
attention after she told the defendant to leave her alone — rather
than on the defendant’s threats.
¶4 Out of concern that the stalking charge against defendant
Daniel Corey Morris could implicate speech protected by the First
Amendment, as discussed in Counterman, the trial court deleted the
reference to “communication” from the elemental stalking jury
instruction (the stalking instruction) and then partially granted
Morris’s motion for a judgment of acquittal over the prosecutor’s
objection. Specifically, the court granted the motion as to the part
of the charge arising from Morris’s repeated contacts with the
victim. In addition, the court limited the jury’s consideration of the
possible acts that could constitute the charged offense to whether
Morris repeatedly approached the victim. The jury acquitted
Morris.
¶5 The People appeal the court’s decision to restrict the jury’s
consideration to whether Morris repeatedly approached the victim
2 in a manner that would cause a reasonable person to suffer serious
emotional distress and whether he caused the victim serious
emotional distress. They do not appeal the court’s revisions to the
stalking instruction. In this appeal, the People assert that, because
the conduct for which Morris was tried did not implicate the content
of his speech, the court erroneously applied the Supreme Court’s
Counterman analysis. Our jurisdiction to consider the People’s
appeal derives from section 16-12-102(1), C.R.S. 2024.
¶6 Because Morris did not file a brief, we solicited amicus briefs.
We received an amicus brief from the Colorado Attorney General’s
Office and the Colorado District Attorney’s Council. We received a
second amicus brief from the Colorado State Public Defender,
Colorado Criminal Defense Bar, and Alternate Defense Counsel.
¶7 We agree with the People and disapprove of the court’s ruling.
We hold that a stalking prosecution premised on acts constituting
approaching or contacting the victim does not implicate the First
Amendment because it is not premised on the content of the
defendant’s speech or expressive conduct.
3 I. Background and Procedural History
¶8 Morris and the victim were in an intimate relationship and at
one time lived together. After their relationship ended and Morris
moved out of the victim’s home, Morris and the victim remained
friends.
¶9 Several months later, the victim told Morris to leave her alone
and to stop communicating with her. Morris, however, continued to
contact the victim in person and through text messages and phone
calls and used someone else’s phone to call her after she blocked
his phone number.
¶ 10 Morris was charged with stalking in violation of section
18-3-602(1)(c). The charging document alleged that Morris
repeatedly “followed, approached, contacted, placed under
surveillance, or made any form of communication with [the victim],
in a manner that would cause a reasonable person to suffer serious
emotional distress, and caused [the victim] serious emotional
distress.”
¶ 11 At trial, the victim testified that she saw Morris drive his truck
into the driveway of the studio where she worked as a glass artist.
Upon seeing Morris, she turned off her equipment, locked the
4 doors, and hid in the bathroom. Morris began aggressively banging
on the front door. He yelled at her to talk to him, uttering short
phrases such as “Will you talk to me?” “Can we talk?” and “Can I
get my passcode back?” The banging stopped after about four or
five minutes. Thinking Morris had left, the victim started to go back
to her studio but stopped and retreated to the bathroom when
Morris resumed banging on the door and yelling at her.
¶ 12 After the banging stopped a second time, she looked outside.
When she did not see Morris’s truck, she returned to her
workspace, which faced a window. Morris, however, was apparently
hiding beneath the windowsill immediately in front of the victim’s
workspace and startled her by appearing in the window while she
was at her desk. He repeatedly asked her to talk to him. She told
him multiple times to go away and that he needed to leave.
¶ 13 After Morris finally left, the victim went home and called the
police to report Morris’s behavior. Before the police could contact
Morris, however, he showed up at the victim’s home and knocked
loudly on her door and yelled at her to talk to him. Although Morris
did not utter threatening words, the victim said his behavior
frightened her.
5 ¶ 14 At the conclusion of the prosecution’s case, Morris moved for a
judgment of acquittal, arguing that the prosecution had not
presented any evidence that he “consciously disregarded a
substantial risk that his words to [the victim] would cause a
reasonable person to suffer serious emotional distress.” In
response, the prosecutor asserted that the case involved not just
communications, but also Morris’s actions of approaching and
contacting the victim. The prosecutor emphasized that, unlike
Counterman, the case against Morris was not premised on “true
threats” because the victim testified “she was not threatened.”
¶ 15 The court initially agreed with the prosecutor and denied
Morris’s motion for judgment of acquittal. But the court deleted the
reference to “communication” in the stalking instruction, “given the
Counterman case,” based on the court’s concern that the charge
against Morris implicated protected speech as well as conduct. A
few minutes later, however, the court reconsidered its ruling,
explaining that it believed Morris’s statements to the victim were
protected speech. The prosecutor objected and argued that Morris’s
contact with the victim did not involve protected speech and that
the evidence of contact was Morris approaching her studio and her
6 home, banging on the door, yelling at her (regardless of what he was
yelling), and popping up at her window.
¶ 16 The court disagreed. The court noted that the evidence
regarding the contact part of the charge involved Morris saying
things to the victim like, “Will you talk to me?” The court found
that such statements constituted protected speech under
Counterman.
¶ 17 Accordingly, the court granted Morris a judgment of acquittal
on the contact portion of the charge. The court found that, “given
the evidence in this case with regard to their [sic] being contact by
way of speech,” even when viewing the evidence in the light most
favorable to the prosecution, there was “insufficient evidence to
show that [Morris] would have recklessly made such statements
that would cause a reasonable person to suffer serious emotional
distress.” The court found, however, that Counterman did not apply
to the approach part of the charge because it did not rely on any
speech.
¶ 18 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
7 serious emotional distress. The jury found Morris not guilty of that
charge.
II. Analysis
¶ 19 The People appeal the court’s decision to grant Morris’s motion
for judgment of acquittal but not the court’s deletion of the
reference to “communication” from the stalking instruction or the
court’s finding there was insufficient evidence to establish that
Morris recklessly made statements that would cause a reasonable
person to suffer serious emotional distress. Thus, our analysis
focuses on whether the court erred by granting Morris’s motion for
judgment of acquittal.
A. Standard of Review
¶ 20 We review de novo the constitutionality of a statute as applied
to an individual. People v. Chase, 2013 COA 27, ¶ 65, 411 P.3d
740, 754. We likewise review a district court’s interpretation of case
law and statutes de novo. Whiteaker v. People, 2024 CO 25, ¶ 9,
547 P.3d 1122, 1125; People v. Rieger, 2019 COA 14, ¶ 8, 436 P.3d
610, 612.
¶ 21 “In construing a statute, our primary purpose is to ascertain
and give effect to the legislature’s intent.” McCoy v. People, 2019
8 CO 44, ¶ 37, 442 P.3d 379, 389. “To do so, we look first to the
language of the statute, giving its words and phrases their plain
and ordinary meanings.” Id. We read and consider the statutory
scheme as a whole and strive “to give consistent, harmonious, and
sensible effect to all its parts.” People v. Apodaca, 58 P.3d 1126,
1130 (Colo. App. 2002).
B. The Stalking Statute and Counterman
¶ 22 A person commits the offense of stalking by “[r]epeatedly
follow[ing], approach[ing], contact[ing], plac[ing] under surveillance,
or mak[ing] any form of communication with another person . . . in
a manner that would cause a reasonable person to suffer serious
emotional distress and does cause that person . . . to suffer serious
emotional distress.” § 18-3-602(1)(c).
¶ 23 Counterman was charged with stalking after he sent the victim
numerous Facebook messages, in textual and photographic form,
over a two-year period. People v. Counterman, 2021 COA 97, ¶¶ 11,
16, 497 P.3d 1039, 1043-44, vacated, 600 U.S. 66 (2023). When
the victim blocked Counterman’s communications, he created new
accounts and resumed sending messages. Id. at ¶ 6, 497 P.3d at
1043. Some of the communications indicated that Counterman
9 had been surveilling the victim and, in at least one message,
Counterman said he wanted the victim to die. Id. at ¶ 7, 497 P.3d
at 1043. Counterman was convicted as charged with of one count
of stalking (severe emotional distress) in violation of section
18-3-602(1)(c). Id. at ¶¶ 12-13, 497 P.3d at 1043-44.
¶ 24 In Counterman’s appeal in this court, the division applied an
objective test to conclude that Counterman’s repeated electronic
messages were “true threats” and thus unprotected speech under
the First Amendment of the United States and article II, section 10,
of the Colorado Constitution. Id. at ¶¶ 29-30, 53, 497 P.3d at 1046,
1049. Although the Colorado Supreme Court denied Counterman’s
petition for a writ of certiorari, Counterman v. People, (Colo. No.
21SC650, Apr. 11, 2022) (unpublished order), the United States
Supreme Court granted certiorari to decide “(1) whether the First
Amendment requires proof of a defendant’s subjective mindset in
true-threats cases, and (2) if so, what mens rea standard is
sufficient.” Counterman, 600 U.S. at 72.
¶ 25 The Supreme Court began its analysis in Counterman by
acknowledging that not all types of communications receive First
Amendment protection, specifically recognizing that “[t]rue threats
10 of violence, everyone agrees, lie outside the bounds of the First
Amendment’s protection.” Id. The Court then considered when a
communication is a “true threat” for which a defendant can be
convicted without infringing on the defendant’s First Amendment
rights.
¶ 26 The Court noted that the determination of whether a
defendant can be convicted for making a “true threat” under the
stalking statute depends not on the defendant’s mental state, but
on what the statement conveys to the recipient of the
communication. Id. The Court explained that, while the First
Amendment generally protects a person’s ability to speak freely,
true threats of violence are outside the bounds of First Amendment
protection. Id. at 69. But the Court’s analysis did not stop here.
The Court said that “the First Amendment may still demand a
subjective mental-state requirement shielding some true threats
from liability. The reason relates to what is often called a chilling
effect. Prohibitions on speech have the potential to chill, or deter,
speech outside their boundaries.” Id. at 75.
¶ 27 The Court concluded that, consistent with the First
Amendment’s protections for speech, a person cannot be criminally
11 convicted for making a threat absent proof that the defendant had
some subjective understanding of the threatening nature of the
defendant’s statement. Id. at 76-78. The Court held that a
recklessness standard — a showing that a person consciously
disregards a substantial and unjustifiable risk that the defendant’s
conduct will cause harm to another — is the minimum mens rea to
support a prosecution premised on the utterance of a threat. Id. at
79-82. Thus, in a prosecution under section 18-3-602(1)(c) for
stalking based on a communication, the Court held that the First
Amendment requires the prosecution to prove that the defendant
(1) had some subjective understanding of the threatening nature of
the defendant’s statements and (2) recklessly made such
statements by consciously disregarding a substantial risk that the
communications would be viewed as threatening violence.
Counterman, 600 U.S. at 78, 80-82.
¶ 28 In Counterman, the Court cited its jurisprudence protecting
conduct that communicates a message, as well as its decisions
articulating the limited categories of conduct that, while expressive,
receive no First Amendment protection. Compare, e.g., Texas v.
Johnson, 491 U.S. 397, 420 (1989) (holding that the act of burning
12 an American flag is protected expressive conduct), and Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969) (holding
that the First Amendment protects expressive conduct in the form
of wearing black armbands to protest the United States’
involvement in the Vietnam war), and Brown v. Louisiana, 383 U.S.
131, 133, 141-42 (1966) (holding that Black protesters’ sit-in in a
“whites only” area to protest segregation is protected under the First
and Fourteenth Amendments’ guarantees of freedom of speech and
assembly and the freedom to petition the government for a redress
of grievances), with Counterman, 600 U.S. at 73-74 (noting the “few
limited areas” in which the First Amendment “permit[s] restrictions
upon the content of speech,” such as “incitement — statements
‘directed [at] producing imminent lawless action,’ and likely to do
so”; “defamation — false statements of fact harming another’s
reputation”; and “obscenity — valueless material ‘appeal[ing] to the
prurient interest’ and describing ‘sexual conduct’ in ‘a patently
offensive way’” (first quoting United States v. Stevens, 559 U.S. 460,
468 (2010); then quoting Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (per curiam); and then quoting Miller v. California, 413 U.S.
15, 24 (1973))). These cases teach that any attempt to draw a
13 bright line between conduct or speech — whether in the context of
Colorado’s stalking statute or elsewhere — is a perilous task and
that we must closely scrutinize whether a statute seeks to
criminalize expressive conduct.
C. The Court’s Decision to Grant Morris’s Motion for Judgment of Acquittal
¶ 29 In applying Counterman to Morris’s actions, the court noted
that any communication that is not a “true threat” is protected
speech under the First Amendment. Thus, the court reasoned that
knocking on a door while asking to speak to another person is
protected speech to which the recklessness mens rea standard
discussed in Counterman applies. 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 (1) Morris’s statements that the victim
described were not “true threats,” and (2) the People had not
provided any evidence that Morris consciously disregarded a
substantial and unjustifiable risk that his conduct would cause the
victim harm.
14 D. The Court Erred by Dismissing the Contact Part of the Stalking Charge
¶ 30 We begin by reiterating that Counterman applies to speech-
based stalking prosecutions. Counterman concerned a stalking
charge premised on repeated communications that implicated
speech protected by the First Amendment and did not address any
of the other forms of stalking under section 18-3-602(1)(c). Thus,
the Court’s articulation of a subjective standard for determining
whether an actor had some understanding of the threatening
nature of the actor’s statements, yet nevertheless consciously
disregarded a substantial and unjustifiable risk that the conduct
would cause harm to another, applies only in the context of a
stalking conviction premised on the content of a communication or
expressive conduct. See State v. Labbe, 2024 ME 15, ¶ 49, 314
A.3d 162, 178-79 (noting that Counterman narrowly framed the
issue as to whether the First Amendment required the State to
prove a defendant’s subjective mens rea in a true threats case
where the content of the defendant’s speech was the central focus of
the inquiry).
15 ¶ 31 As explained above, the crime of stalking can be accomplished
when an actor “[r]epeatedly follows, approaches, contacts, places
under surveillance, or makes any form of communication” with
another person, when such action would cause a reasonable person
to suffer serious emotional distress and does cause that person to
suffer serious emotional distress. § 18-3-602(1)(c). By listing
alternative ways to commit the offense and connecting those
methods by using the disjunctive conjunction “or,” the General
Assembly intended each of those methods to describe a different
way to commit the offense. Friend v. People, 2018 CO 90, ¶ 16, 429
P.3d 1191, 1195 (noting that, when the General Assembly joins
“alternatives disjunctively in a single provision of the criminal code,”
it intended to “describe alternate ways of committing a single crime
rather than to create separate offenses” (quoting People v. Abiodun,
111 P.3d 462, 467 (Colo. 2005))); see Armintrout v. People, 864 P.2d
576, 581 (Colo. 1993) (“[W]hen the word ‘or’ is used in a statute, it
is presumed to be used in the disjunctive sense, unless legislative
intent is clearly to the contrary.”).
¶ 32 As Justice Sotomayor recognized in her partial concurrence in
Counterman, a prosecution for stalking causing serious emotional
16 distress that is based on repeated unwanted contact does not
depend on the content of the communication and, thus, raises
fewer First Amendment concerns than does a prosecution premised
on the content of the defendant’s communications. Counterman,
600 U.S. at 85-86 (Sotomayor, J., concurring in part). Although
such conduct may be accompanied by utterances, a defendant’s
“repeated unwanted contact[s],” id., are not necessarily “sufficiently
imbued with elements of communication to fall within the scope of
the First and Fourteenth Amendments,” Spence v. Washington, 418
U.S. 405, 409 (1974).
¶ 33 Thus, because stalking that causes serious emotional distress
in violation of section 18-3-602(1)(c) does not always require proof
that the accused engaged in the type of communication or
expressive conduct that implicates the First Amendment, we
conclude that Counterman does not apply to stalking prosecutions
not premised on the content of the defendant’s communication or
expression. See Labbe, ¶ 50, 314 A.3d at 179 (recognizing that,
although some stalking prosecutions may rely in whole or in part
on words used by a defendant to establish the course of conduct
and consequent effect upon the victim, Counterman’s requirement
17 to prove a subjective mens rea of recklessness only applies when
the prosecution relies on the content of a defendant’s expression as
the basis for a stalking charge and to establish the victim’s harm);
see also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502
(1949) (“[I]t has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because
the conduct was in part initiated . . . or carried out by means of
language . . . .”).
¶ 34 As noted above, the court narrowed the stalking instruction to
exclude any of Morris’s communications to the victim. For this
reason, had the court not granted Morris’s motion for judgment of
acquittal, the jury could have convicted Morris based on his
conduct toward the victim but not on his communications to her.
Yet the court concluded that its revision of the stalking instruction
a few minutes earlier was insufficient to avoid a potential violation
of Morris’s First Amendment rights through a conviction based on
words he uttered to the victim.
¶ 35 The 1999 amendment to the stalking statute that added
“approaches, contacts, or places under surveillance” to the types of
conduct that can constitute stalking supports our conclusion. See
18 Ch. 215, sec. 1, § 18-9-111(4)(b)(I), 1999 Colo. Sess. Laws 792-94
(repealed and relocated to section 18-3-602, C.R.S. 2010, effective
Aug. 11, 2010). Before that amendment, the stalking statute
addressed only situations where a person made a credible threat
and, in connection with that threat, either repeatedly followed or
made some form of communication with that person. People v.
Burgandine, 2020 COA 142, ¶ 24, 484 P.3d 739, 744; see also
People v. Miller, 2024 COA 66, ¶ 46, 556 P.3d 1262, 1270. In
adding the “approaches, contacts, or places under surveillance”
language, the General Assembly expanded the statute to cover
additional types of stalking conduct. Burgandine, ¶¶ 18, 24, 484
P.3d at 743-44 (noting that, by adding the subsection addressing
emotional distress stalking and including both “contacts” and “any
form of communication,” the General Assembly intended to capture
all stalking conduct by using such a broad term as “contacts,” when
arguably such word subsumed the “any form of communications”
phrase already contained in the statute).
¶ 36 The case against Morris, as it went to the jury, was premised
exclusively on his actions, not on the content of his
communications to the victim. By narrowing the stalking
19 instruction, the court ensured that Morris could not be convicted
based on protected communications. At that stage of the trial, the
stalking charge was solely premised on Morris’s acts of banging on
the door of the victim’s studio, the volume of Morris’s screams, and
his attempts to force the victim to come to the door. The
instruction the court provided the jury did not permit it to convict
Morris of stalking for saying, “Will you talk to me?” “Can we talk?”
and “Can I get my passcode back?” as he pounded on the door and
yelled at the victim. Thus, the precise words Morris uttered to the
victim were no more relevant to whether he stalked the victim than
the defendant’s utterance of “bang, bang” before shooting the victim
was relevant to the first degree murder charge in People v. Perez,
2024 COA 94, ¶ 24, 559 P.3d 652, 658.
¶ 37 Accordingly, we conclude that the court erred by requiring the
prosecution to prove the recklessness element contemplated in
Counterman when seeking a conviction based on Morris’s repeated
contacts with the victim. Although the evidence elicited at trial
included words that Morris spoke while engaging in the charged
conduct, the instruction the court gave made clear that the stalking
charge against Morris was not predicated on the content of his
20 communications. It was based solely on Morris’s actions, not his
words. As a result, the court should not have required the
prosecution to prove that Morris consciously disregarded a
substantial and unjustifiable risk that his repeated contacts with
the victim would cause her harm.
III. Disposition
¶ 38 We disapprove of the court’s ruling.
JUDGE SULLIVAN and JUDGE TAUBMAN concur.