Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Lucas Mena appealed his conviction for several sexual offenses. According to the opinion, the appeal presented several issues not previously resolved in any published appellate case in Colorado.
First, the Colorado Court of Appeals had to decide whether evidence of the psychological and emotional impact the crime had on an alleged sexual assault victim may be relevant to whether that victim’s allegations are credible.
The court also addressed Section 18-3-404(1.5) of the Colorado Revised Statutes and had to decide whether the “means” set forth in the statute include each of the eight different ways of committing sexual assault set forth in the latter statute.
Finally, the court had to consider Mena’s as-applied equal protection challenge to his mandatory prison sentence for unlawful sexual contact (coerce child) in light of the fact that, as he was charged and prosecuted, his conviction for sexual assault on a child addressed the same conduct but carried the possibility of a sentence to probation.
Taking those issues in turn, the appeals court concluded that evidence of the psychological and emotional impact of the assault on the victim was relevant to the victim’s credibility; Section 18-3-402(1) provides eight “means” by which a child may be induced or coerced under the statute; and as charged here, Mena’s disparate punishments for unlawful sexual contact (coerce child) and sexual assault on a child violated his constitutional rights.
The appeals court vacated the conviction for unlawful sexual contact but affirmed the remaining convictions. It remanded the case to the district court for a new sentencing hearing on all counts other than unlawful sexual contact (coerce child).
In Counterman v. Colorado, the U.S. 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.
To ensure that the defendant’s speech is accorded sufficient protection, the nation’s high 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.”
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.’”
The Supreme Court vacated the decision of a division of the Colorado Court of Appeals and remanded for review of Counterman’s conviction under a recklessness standard.
In this case, the Colorado Court of Appeals considered whether the Supreme Court’s Counterman analysis applied 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.
Out of concern that the stalking charge against Daniel 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 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.
The prosecution appealed the court’s decision to restrict the jury’s consideration to whether Morris repeatedly approached the victim in a manner that would cause a reasonable person to suffer serious emotional distress and whether he caused the victim serious emotional distress. The prosecution didn’t appeal the court’s revisions to the stalking instruction.
In this appeal, the prosecution argued that, because the conduct for which Morris was tried didn’t implicate the content of his speech, the court erroneously applied the Supreme Court’s Counterman analysis.
Because Morris didn’t file a brief, the appeals court solicited amicus briefs. It received an amicus brief from the Colorado attorney general’s office and the Colorado District Attorneys’ Council. It received a second amicus brief from the Colorado State Public Defender, Colorado Criminal Defense Bar and Alternate Defense Counsel.
The appeals court agreed with the People and disapproved of the court’s ruling.
The appeals court held that a stalking prosecution premised on acts of approaching or contacting the victim doesn’t implicate the First Amendment because it is not premised on the content of the defendant’s speech or expressive conduct.