People v. Conlon

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
October 2, 2025

2025COA79

No. 22CA1402, People v. Conlon — Criminal Law — Rights of
Defendant — Speedy Trial

A division of the court of appeals holds, as a matter of first

impression, that a court errs by finding that a defendant waived his

statutory speedy trial right when the court took months to rule on a

discovery issue and, as a result of the court’s delay in ruling,

defense counsel faced the prospect of receiving a massive volume of

discovery materials only days before trial. But the error is harmless

if the court resets the trial for a date before the speedy trial deadline

in effect when the court ruled on the discovery issue and, therefore,

the court’s error does not violate the defendant’s statutory right to a

speedy trial.
COLORADO COURT OF APPEALS 2025COA79

Court of Appeals No. 22CA1402
Arapahoe County District Court No. 19CR875
Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon John Conlon,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

Announced October 2, 2025

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Persons accused of a crime are entitled to a speedy trial.

Under the Colorado speedy trial statute, that means a trial “within

six months from the date of the entry of a plea of not guilty.”

§ 18-1-405(1), C.R.S. 2025. As a general rule, if the defendant’s

case is not brought to trial within the six-month period, “the

pending charges shall be dismissed” with prejudice. Id. As relevant

to this appeal, if the defendant seeks and is granted a continuance

of the trial date, “the period within which the trial shall be had is

extended for an additional six-month period from the date upon

which the continuance was granted.” § 18-1-405(3). Determining

whether a defendant waived speedy trial and whether a court

violated a defendant’s statutory speedy trial right can be a difficult,

fact-intensive endeavor.

¶2 In this case, we consider two distinct issues involving

interpretation of the Colorado speedy trial statute. First, we hold

that a court errs by finding that the defendant waived his statutory

speedy trial right when the court took months to decide a discovery

motion and, as a result of the court’s delay in ruling, defense

counsel faced the prospect of receiving a massive volume of

discovery materials only days before trial. But we also conclude

1
that the error is harmless if the court resets the trial for a date

before the speedy trial deadline in effect at the time of the court’s

ruling and, therefore, the court’s error does not violate the

defendant’s statutory right to a speedy trial.

¶3 Second, applying People v. Duncan, 31 P.3d 874, 876 (Colo.

2001), we hold that a court does not err by finding a waiver of

speedy trial when defense counsel advises the court that counsel is

not prepared to proceed to trial on the scheduled date because the

defense never received voluminous discovery materials and the

prosecution’s failure to provide such materials was the result of

lack of diligence and not bad faith.

¶4 Because we conclude that the court did not violate the

statutory speedy trial right of defendant, Brandon John Conlon,

and because we reject his other arguments, we affirm.

I. Background

¶5 A reasonable jury could have found the following facts based

on the evidence introduced at trial.

¶6 In March 2019, H.C., the victim, reported that Conlon, her

then husband, had physically assaulted her four days earlier.

2
Conlon had a history of physically, verbally, and emotionally

abusing the victim for more than a decade.

¶7 During the incident that the victim later reported to the police,

she awoke when Conlon struck her with a wooden bat. While

hitting her, Conlon called her “stupid” and “worthless,” said she

“didn’t do anything right,” and told her “it was all [her] fault.” She

testified that she did not call the police at the time because she was

“scared for [her] life.” Conlon also attacked the victim the next day,

again while she was sleeping. He punched her repeatedly in the

face and again called her “stupid” and “worthless.” That attack

blinded the victim in one eye.

¶8 During the course of law enforcement’s investigation into the

assaults, the victim consented that the prosecution could collect

from her phone the abusive messages that Conlon had sent her

over several years.

¶9 The prosecution charged Conlon with two counts of second

degree assault and one count each of third degree assault, stalking,

and violation of a protection order. The defense requested that the

jury be instructed on additional counts for lesser nonincluded

3
offenses: one count of reckless endangerment and three counts of

harassment. A jury convicted Conlon on all counts.

¶ 10 On appeal, Conlon contends that (1) the court violated his

statutory speedy trial right; (2) section 18-3-602(1)(c), C.R.S. 2025,

the subsection of the stalking statute for which he was convicted, is

facially overbroad; and (3) there was insufficient evidence to support

his conviction for violating a protection order. We affirm.

II. Speedy Trial

¶ 11 Conlon first contends that the court violated his statutory

speedy trial right. We disagree.

A. Additional Background

1. The Proceedings Through
the September 28, 2021, Trial Readiness Conference

¶ 12 The prosecution filed the charges against Conlon in March

2019. Conlon pleaded not guilty, and the court scheduled his trial

for January 27, 2020. Conlon’s initial speedy trial deadline was

April 17, 2020. Several continuances not pertinent to this appeal

delayed the trial.

¶ 13 On December 9, 2020, the prosecutor filed a motion for an in

camera review of the victim’s cell phone records (the discovery

4
motion). The prosecutor explained in the discovery motion that law

enforcement officers had, with the victim’s consent, extracted a

complete digital copy of the contents of her phone. She later

revoked her consent to the extraction of any records other than the

text messages between her and Conlon, however.

¶ 14 The prosecutor asked law enforcement officers to provide

defense counsel with those text messages but not any other records

extracted from the victim’s phone. In the discovery motion, the

prosecutor asked the court to review the other records and

determine which of them, if any, needed to be produced to the

defense.

¶ 15 The prosecutor provided the court with the complete copy of

the contents of the victim’s phone for this purpose and, at a hearing

conducted on April 12, 2021, told the court that no other copies of

the phone records existed.

¶ 16 The court eventually reset the trial for October 11, 2021, with

a new speedy trial deadline of December 1, 2021. The court

scheduled a trial readiness conference for September 28, 2021. The

new deadline for the defense’s endorsement of witnesses was

September 6, 2021. Defense counsel did not object to these dates.

5
¶ 17 At a status conference conducted on August 20, 2021, defense

counsel reminded the court that it had not yet ruled on the

discovery motion and asked the court to decide it “sufficiently in

advance of trial and the [witness] endorsement deadline.” The court

said that its ruling on the discovery motion was “forthcoming.”

¶ 18 The court did not rule on the discovery motion until 5:49 p.m.

on September 27, 2021 — only hours before the trial readiness

conference scheduled for the next morning. In its ruling, the court

ordered the prosecution to produce to the defense nearly 31,000

records from the victim’s cell phone. The court explained that those

records could be relevant to the stalking charge. At the time of the

ruling, Conlon’s trial was only nine business days away.

¶ 19 At the trial readiness conference, the court asked defense

counsel whether he was ready to proceed to trial. Defense counsel

noted that he had yet to receive the 31,000 phone records and did

not know when the prosecutor would produce them, how much

time it would take to review them, or whether the defense would

need to endorse additional witnesses once defense counsel had

reviewed the records. He said, “[W]e cannot proceed until we have

6
had a chance to review [the records].” Conlon’s counsel also told

the court,

Given of course that this delay is not related to
Mr. Conlon or anything of his doing, we would
request that any continuance be within the
currently set speedy trial and to allow enough
time, at least to be 35 days from now, so that
way if there are additional witness
endorsements . . . from the cellular phone
records that we would be able to sufficiently
endorse them ahead of trial.

(Emphasis added.)

¶ 20 The court found that, through this statement, Conlon was

waiving speedy trial. Nonetheless, the court reset the trial for

November 29, 2021, before the prior December 1 speedy trial

deadline.

2. The November 23, 2021, Trial Readiness Conference

¶ 21 As the November 29 trial date drew closer, Conlon’s defense

counsel still had not received the 31,000 additional phone records.

For this reason, on November 21, defense counsel moved for

sanctions in the form of dismissal of the stalking and violation of a

protection order counts (the sanctions motion). Defense counsel

argued in the sanctions motion that dismissal of the two counts

was warranted because of the prosecution’s bad faith in failing to

7
produce the additional phone records, as the court had ordered.

Quoting Pfantz v. Kmart Corp., 85 P.3d 564 (Colo. App. 2003), and

citing other civil cases, defense counsel asserted that bad faith in

the discovery context means “culpable conduct which is more than

mere inadvertence or simple negligence, but is gross negligence” or

“conduct which, although not necessarily deliberate or intentional,

nonetheless amounts to a flagrant disregard or dereliction of one’s

discovery obligations.” Id. at 568 (quoting Kwik Way Stores, Inc. v.

Caldwell, 745 P.2d 672, 677 (Colo. 1987)). Defense counsel said

that the prosecution had acted in bad faith by “neglecting its [Crim.

P.] 16 obligations” to Conlon despite “a direct [c]ourt order

mandating compliance.” Defense counsel later explained that he

requested dismissal of the stalking and violation of a protection

order counts because they “have very expansive date ranges” and

the phone records may relate to them.

¶ 22 The prosecutor responded that, because the court possessed

the only digital copy of the phone records, the court — not the

prosecution — needed to provide the additional records to the

defense.

8
¶ 23 At the November 23 trial readiness conference, defense

counsel informed the court that he had still not received the phone

records, notwithstanding the court’s order that the prosecutor

produce them. Unlike the situation at the September conference,

this time the delay was attributable to the prosecution’s failure to

produce the phone records and not to the time it took the court to

rule on the discovery motion.

¶ 24 The prosecutor said she had only learned that morning that

the sheriff’s department had a download of the victim’s phone in its

possession. She told the court, “I understood and it was my belief

that the copy of the phone that has been provided to the Court was

the only download of the phone.”

¶ 25 Defense counsel responded that the prosecutor had failed to

provide “any affirmative steps by the district attorney’s office to

comply with both their discovery obligations . . . and this Court’s

direct written order to the prosecution to provide this information.”

Consequently, defense counsel argued that the prosecution had

acted in bad faith, which he defined, consistent with his argument

in the sanctions motion, as “conduct which although not

9
necessarily deliberate or intentional, nonetheless amounts to a

flagrant disregard [or] dereliction of one’s discovery obligations.”

¶ 26 In announcing its decision to deny the sanctions motion, the

court said the prosecutor “should be well aware that law

enforcement still has possession” of the phone records absent

information that law enforcement was not retaining them. The

court noted that it had not heard of “a process” whereby law

enforcement did not retain a copy of discovery materials that “they

themselves replicated” for the court’s review. Further, the court

said that its September 27 order was clear, “but perhaps at least to

one side it was not.”

¶ 27 The court admonished the prosecutor:

[W]hen an order is issued, it’s prudent,
particularly upon the party bringing the case,
to follow up, and in large part again because
the defense at least as this Court understands
has never had these records, and even if the
People assert they do not, the People by their
own acknowledgment assert that their office
has handled them for chain of custody
purposes, even if it’s just to provide them to
law enforcement. The Court is well aware of
what Rule 16 says about the connections of
records in discovery and what the obligations
of the People are as it relates to law
enforcement. At the same time, if there is a
misunderstanding of an order, it should not

10
persist for two months. So don’t let this
happen again. Am I clear?

¶ 28 But the court did not find that the prosecutor had acted in

bad faith; it did not find that her failure to produce the additional

records to the defense was “gross negligence” or amounted to a

“flagrant disregard or dereliction” of her discovery obligations.

Pfantz, 85 P.3d at 568.

¶ 29 The discussion at the November conference then turned to

whether the case would proceed to trial as scheduled on November

29.

¶ 30 Defense counsel reminded the court and the prosecutor that,

at the September conference, he had “told everyone” that he would

not be ready for trial until he had received the additional phone

records. He said that he could only proceed to trial on November 29

if the court dismissed the stalking and violation of a protection

order counts, to which the phone records were potentially relevant.

In addition, defense counsel asserted that he was not asking for a

continuance because Conlon did not want one and “speedy is soon.”

¶ 31 Although defense counsel told the court he was not seeking a

continuance, he also said that, if the court did not dismiss the

11
stalking and protection order counts, the defense would not be

ready to try the case on November 29. Defense counsel conveyed

the clear message that he could not effectively represent Conlon at

a November 29 trial on all counts.

¶ 32 The court denied the sanctions motion and reset the trial for

January 10, 2022. In doing so, the court reaffirmed, over the

defense’s objections, its prior finding that Conlon had waived

speedy trial. On December 5, 2021, Conlon moved for dismissal of

all charges under section 18-1-405(5) based on the court’s alleged

violation of his statutory right to a speedy trial.

¶ 33 Conlon’s case eventually went to trial in April 2022. (The

appellate record does not indicate when, if ever, defense counsel

received the phone records.)

B. Applicable Law

¶ 34 If a defendant’s case is not tried within six months of the entry

of a not guilty plea, the charges must be dismissed unless the

statute provides otherwise. § 18-1-405(1). “The burden of

compliance with the speedy trial requirement . . . rests wholly with

the [prosecution] and the trial court.” People v. Sherwood, 2021 CO

61, ¶ 23, 489 P.3d 1233, 1239.

12
¶ 35 The speedy trial statute “makes specific provision for the effect

of a request for a continuance on the speedy trial calculation.”

Duncan, 31 P.3d at 876. As noted above, section 18-1-405(3) says

that, “[i]f a trial date has been fixed by the court, and thereafter the

defendant requests and is granted a continuance for trial, the

period within which the trial shall be had is extended for an

additional six-month period from the date upon which the

continuance was granted.”

¶ 36 “[T]he key to interpreting subsection 405(3) is not whether the

defendant caused the delay, but whether a continuance was

granted at the defendant’s request.” Duncan, 31 P.3d at 876-77

(citation omitted). But the supreme court also said that, despite the

seemingly inflexible language of section 18-1-405(3), not every

defense request for a continuance extends the six-month speedy

trial period. A defendant does not waive speedy trial by requesting

a continuance in response to the prosecution’s bad faith, last-

minute production of voluminous discovery materials to the

defense. See id.

¶ 37 “In addition to the exceptions and exclusions that are

specifically addressed by the speedy trial statute, there may be

13
circumstances where a reasonable delay is necessary to protect

other fundamental constitutional rights of the defendant.” People

ex rel. Gallagher v. Dist. Ct., 933 P.2d 583, 588 (Colo. 1997). “In

such an instance, the statutory speedy trial right must yield to

protection of a defendant’s constitutional rights.” Id. (Conlon does

not contend that his constitutional right to a speedy trial was

violated.)

¶ 38 Whether a court violated a defendant’s speedy trial rights by

setting a new trial date is a question of law that we review de novo.

Sherwood, ¶ 19, 489 P.3d at 1238.

C. Analysis

¶ 39 Conlon asserts that the court erred by finding that he waived

his statutory speedy trial right at the September trial readiness

conference. Conlon also raises the separate — albeit related —

contention that the court erred by reaffirming its waiver finding at

the November conference and by setting a new trial date past the

prior December 1 speedy trial deadline because the continuance of

the November 29 trial date was attributable to “the prosecution’s

failure to disclose the required evidence.”

14
¶ 40 In his opening brief, Conlon conflates the events that occurred

at the September and November conferences, even though the

procedural posture of the case materially changed between the two

conferences. For this reason, we first address whether the court

erred by finding at the September conference that Conlon waived

his statutory speedy trial right by seeking additional time to prepare

for trial as a consequence of the court’s delay in ruling on the

discovery motion. Second, we separately consider whether, at the

November conference, the court erred by reaffirming its prior waiver

finding and setting the trial for a date following the previous

December 1 speedy trial deadline, when the need to postpone the

trial was solely attributable to the prosecution’s failure to timely

produce the 31,000 phone records to the defense, as the court had

ordered.

1. The September Trial Readiness Conference

¶ 41 Conlon asserts that the court erred for two reasons by finding

at the September conference that he waived his statutory speedy

trial right: first, at the conference, defense counsel requested a new

trial date that fell within the existing speedy trial deadline; and

second, Conlon’s request for a continuance was not attributable to

15
him, but instead to the length of time it took the court to decide the

discovery motion. Because we agree with Conlon’s second

argument, we need not address his first argument.

a. Conlon Did Not Waive His Statutory Speedy Trial Right
at the September Conference Because
the Court’s Delay in Ruling Necessitated the Delay

¶ 42 Our analysis of Conlon’s second argument largely rests on the

supreme court’s holding in Duncan that section 18-1-405(3)’s broad

language, which says that any defense request for a continuance

results in a waiver of speedy trial, is subject to exceptions. 31 P.3d

at 877. Duncan, coupled with the supreme court’s cases addressing

continuances resulting from delays solely attributable to the trial

court, People v. Arledge, 938 P.2d 160 (Colo. 1997), and People ex

rel. Gallagher, 933 P.2d 583, compels the conclusion that a court

errs by finding a waiver of speedy trial when the defense had no

choice but to seek a continuance as a consequence of the court’s

delay in ruling on a discovery issue only days before trial.

¶ 43 In Arledge and Gallagher, the supreme court considered

whether a court’s actions that force a postponement of the trial date

can be charged to the defendant. In neither case did the defense

expressly ask for a continuance; the need for a later trial date was

16
apparent even without such a request. As we explain below, in

both cases, the supreme court concluded that the defendant had

not waived his statutory speedy trial right because the court alone

was responsible for the continuance of the trial date.

¶ 44 In Arledge, the defendant filed a timely recusal motion five

weeks before trial. 938 P.2d at 162-63. The trial judge initially

denied the motion but then, only three days before trial, announced

that he had decided to recuse himself and that he would ask the

chief judge to reassign the case to a different judge. Id. at 163-64.

Even though the defendant had not requested a continuance, the

judge announced that the defendant had waived speedy trial by

moving for recusal. Id.

¶ 45 The new judge assigned to the case reset the trial for a date

after the prior speedy trial deadline over the defense’s objections.

Id. at 164. Defense counsel then moved to dismiss the case,

arguing that, by setting the trial outside the prior six-month speedy

trial period, the new judge had violated the defendant’s statutory

speedy trial right. Id. The new judge agreed and dismissed the

charge against the defendant. Id.

17
¶ 46 The supreme court held that the trial court’s delay in ruling on

the defense’s recusal motion was not chargeable to the defendant

and that, under the circumstances, the trial court had violated the

defendant’s speedy trial right by resetting the trial outside the six-

month statutory period. The supreme court affirmed the dismissal

of the charge against the defendant. Id. at 165.

¶ 47 The supreme court said that, “[u]nder circumstances where no

statutory exception or constitutional right justifies a delay, and the

defendant has taken no action to effectuate or consent to a delay,

noncompliance with the speedy trial requirements results in

dismissal of the charges against the defendant.” Id. The supreme

court noted that a trial court can violate a defendant’s right to a

speedy trial by charging the defendant with a continuance of the

trial attributable the court’s own “dilatory ruling.” Id.; see also Hills

v. Westminster Mun. Ct., 245 P.3d 947, 950 (Colo. 2011) (holding

that a municipal court’s dilatory ruling may result in a violation of

the defendant’s speedy trial rights). (By citing supreme court

decisions referring to dilatory rulings, we do not mean to suggest

that, in this case, the court acted in bad faith, with gross

negligence, or in “flagrant disregard or dereliction” of its obligation

18
to decide matters without “inordinate delay,” see In re Jones, 728

P.2d 311, 314 (Colo. 1986), or that the court inordinately delayed in

ruling on the discovery motion. The record does not reveal why the

court took nine months to rule on the discovery motion.)

¶ 48 In Gallagher, the supreme court similarly held that the trial

court’s actions forced the continuance of the trial and, therefore,

the defendant did not waive speedy trial. In that case, the

defendant’s public defender announced one month before trial that

the Office of the Public Defender “would no longer be able to

represent [the defendant] due to an irreconcilable conflict of

interest.” Gallagher, 933 P.2d at 586. Two days later, the court

asked attorney Paul Origlio to accept appointment as Gallagher’s

new counsel. Id. But “Origlio informed the district court that he

could not accept the previously set trial date . . . and that he would

be unable to schedule a new trial within the speedy trial date.” Id.

Further, Origlio advised the court that the defendant was “unlikely

to waive his speedy trial rights” and “both Origlio and the People

suggested that an attempt should be made to find other

representation more able to meet the speedy trial deadline.” Id.

19
¶ 49 The court nonetheless appointed Origlio as defense counsel

based on its assumption that “any new counsel would not have

adequate time to prepare which would engender a claim of

inadequate representation” and set the trial for a date thirty-eight

days beyond the speedy trial deadline. Id. The court said, “I don’t

think the court is required to go to extraordinary measures to find

some attorney that will accept a trial date within a date which this

court finds is probably not reasonable under the circumstances.”

Id.

¶ 50 In its order appointing Origlio and setting the new trial date,

the court found that the defendant was responsible for the delay in

his trial and observed that, “where newly appointed conflict-free

counsel cannot accept a trial date prior to the expiration of the six

month speedy trial period, such inability is tantamount to a request

for a continuance.” Id. at 587.

¶ 51 The supreme court concluded that the trial court erred

because the delay in the trial was not properly chargeable to the

defendant. Id. at 592. It premised its decision on several material

facts, including the lack of record support for the trial court’s

assertions that

20
1. “the amount of time left” before the speedy trial deadline

was “insufficient . . . to prepare for this trial”;

2. “find[ing] alternative defense counsel who could have

tried the case prior to the speedy trial date” would be

“impossible” and “unreasonable”; and

3. the defendant’s “right to effective assistance of counsel

would have been jeopardized by the court’s attempt to

seek other defense counsel.”

Id. at 590. The supreme court held that the trial court erred by

refusing to find another defense attorney who was available for a

trial before the speedy trial deadline. Id.

¶ 52 The supreme court concluded that the delay in the trial was

not necessary “to safeguard the defendant’s right to effective

assistance of counsel.” Id. The court noted, “[T]here [was]

absolutely no evidence in the record that [the defendant] agreed to

the delay,” and, more importantly, there was no record evidence

that the defendant “took any action that necessitated” the delay. Id.

at 591-92. Although the supreme court said that a defendant’s

statutory speedy trial right may, when necessary, yield to protect

the defendant’s constitutional right to effective assistance of

21
counsel, id. at 588-89, the court found no such clash of rights in

Gallagher. Rather, Gallagher teaches that, when considering

whether a defendant waived speedy trial, the court must consider to

whom the delay forcing the continuance is attributable and whether

it resulted from an action the court took outside the defendant’s

control. See id. at 589-90.

¶ 53 After the supreme court decided Arledge and Gallagher, it

considered when, under section 18-1-405(3), a defendant’s request

for a continuance due to a prosecutor’s tardy production of

discovery materials may be “charged to someone other than the

defendant.” Duncan, 31 P.3d at 878. In Duncan, the prosecutor did

not disclose discoverable material to the defense until the Friday

before trial, which was scheduled to begin on Monday. Id. at 875.

Although the trial court agreed with the defense that the untimely

disclosed information was discoverable, it declined to find a speedy

trial violation because the prosecutor had not learned of the

information until one day before the production and had not acted

in bad faith. Id. Unlike in Arledge and Gallagher, defense counsel

in Duncan expressly requested a continuance.

22
¶ 54 The Duncan court held that a defendant who requests a

continuance after receiving voluminous discovery materials from

the prosecution only days before trial necessarily waives speedy

trial, absent a finding that the prosecution delayed the production

in bad faith. Id. at 878. Notably, the supreme court held that,

although section 18-1-405(3) “does not expressly include any

qualification on the effect of a defense requested continuance,” an

exception to the statute’s sweeping language was necessary in bad

faith cases. Id. at 877. The court reasoned that, “without

protection from such bad faith or deliberate prosecutorial

misconduct, a defendant’s often difficult tactical choice to seek a

continuance would become no choice at all.” Id.

¶ 55 Central to the supreme court’s reasoning in Duncan was its

observation that, “[t]o the extent that [a defendant] is disadvantaged

by erroneous rulings of the court or violations of the law or

procedural requirements by the prosecuting attorney, appropriate

remedies are separately provided for those irregularities.” Id. The

Duncan court cited one such remedy, which is found in Crim. P.

16(III)(g):

23
[i]f at any time during the course of the
proceedings it is brought to the attention of the
court that a party has failed to comply with
this rule or with an order issued pursuant to
this rule, the court may order such party to
permit the discovery or inspection of materials
not previously disclosed, grant a continuance,
prohibit the party from introducing in evidence
the material not disclosed or enter such other
order as it deems just under the
circumstances.

¶ 56 However, the court cited no remedy, and we are aware of none,

for a trial court’s actions that result in a substantial delay in

defense counsel’s receipt of potentially relevant evidence only days

before trial. In that situation, the defense has no recourse other

than to seek a continuance. For example, the court cannot penalize

the prosecution for the court’s own delay in ruling on a critical

pretrial motion. And the lack of any protection from the

consequences of the court’s delay — other than a continuance —

means that the defense has no choice under the circumstances but

to seek a new trial date.

¶ 57 Because Duncan involved delays in the proceedings caused by

the prosecution, the court’s pronouncements in that case are not

controlling when, as here, the delay requiring the continuance is

solely attributable to the court. For example, in the context of a

24
delay caused by the prosecution’s good faith actions, the Duncan

court said the key consideration under section 18-1-405(3) is not

whether the defendant caused the delay, but whether one was

granted at his request. 31 P.3d at 876-77.

¶ 58 Although the defense did not expressly ask for a continuance

in Arledge, 938 P.2d at 165, or Gallagher, 933 P.2d at 589-90, the

reasoning of those cases applies even if the defense made such a

request. Therefore, even if the defense had asked for a continuance

in those cases, following the supreme court’s logic, the delay

attributable to the court’s actions could nonetheless not be charged

against the defendant. Those cases are consistent with the

principle that, like the prosecution, the court is responsible for

complying with the defendant’s statutory speedy trial right. See

Sherwood, ¶ 23, 489 P.3d at 1239; see also Hills v. Westminster

Mun. Ct., 215 P.3d 1221, 1225 (Colo. App. 2009) (“[C]ontinuances

because of docket congestion are generally not attributable to a

defendant and do not relieve the prosecution and the court of their

responsibility to bring a defendant to trial in a timely manner.”),

aff’d, 245 P.3d 947 (Colo. 2011).

25
¶ 59 Accordingly, Duncan, Arledge, and Gallagher, when read

together, compel the conclusion that section 18-1-405(3) does not

require a finding that the defendant waived speedy trial when the

defense seeks a continuance because the court’s delay in ruling on

a discovery issue resulted in the defense’s receipt of voluminous

discovery materials only days before trial. Under those

circumstances, the defendant has no remedy but to seek a

continuance, just as when a prosecutor’s bad faith action forces the

defense to ask for a postponement of the trial. See Duncan, 31 P.3d

at 877. In both scenarios, the defendant’s tactical choice to seek a

continuance “become[s] no choice at all” because the court’s last-

minute discovery ruling leaves the defendant with no other option.

Id.

¶ 60 In this case, the court’s delayed ruling on the discovery motion

put defense counsel in an untenable position. Conlon was not

responsible for the court’s 169-day delay in deciding which

additional phone records needed to be produced to defense counsel.

The court ruled on the discovery motion only nine business days

before the October 11 trial date. Even if the prosecution had

produced all 31,000 additional phone records the day of the

26
September conference, the timing of the court’s ruling on the

discovery motion meant that defense counsel lacked sufficient time

to review the records before trial.

¶ 61 Accordingly, we hold that the court erred by finding that

Conlon waived his statutory right to a speedy trial because Conlon

had no choice but to request a continuance in light of the court’s

nine-month delay in ruling on the discovery motion.

b. The Court’s Error in Finding a Waiver Was Harmless

¶ 62 Although the court erred, we conclude that the error did not

violate Conlon’s statutory right to a speedy trial. Although the

court found a waiver of speedy trial, it nevertheless reset Conlon’s

trial for a date before the prior December 1 speedy trial deadline. If

not for the subsequent delays attributable to the prosecutor, as

discussed in Part II.A.2 above, the case would have proceeded to

trial before December 1 and there would have been no need to find

a waiver. See § 18-1-405(1) (“[I]f a defendant is not brought to trial

on the issues raised by the complaint, information, or indictment

within six months from the date of the entry of a plea of not guilty

. . . the pending charges shall be dismissed . . . .” (emphasis

added)); Clark v. People, 2024 CO 55, ¶ 61, 553 P.3d 215, 229

27
(Under the harmless error standard, “reversal is required only if the

error affects the substantial rights of the parties.” (citation

omitted)).

¶ 63 Thus, while a court errs by causing a substantial delay in

defense counsel’s receipt of potentially relevant evidence and then

by charging the necessary continuance against him, the error is

harmless when, as here, the court sets the new trial date before the

prior speedy trial deadline.

2. The November Conference

a. Conlon Effectively Requested a Continuance

¶ 64 The status of the case at the November conference was

materially different from the status of the case at the September

conference. The case could not proceed to trial on November 29

because of the prosecution’s lack of diligence in producing the

31,000 additional phone records and not due to the trial court’s

delay in ruling on the defense’s entitlement to those records.

¶ 65 By representing that he would be unprepared at a November

29 trial on all counts, Conlon’s counsel communicated to the court

that Conlon had no choice but to seek a new trial date as a

consequence of the prosecution’s failure to timely produce the

28
additional phone records. Counsel’s statement that, “[i]f the [c]ourt

were to grant” the sanctions motion, counsel could “affirmatively

state that we are ready and prepared to proceed to trial” was the

logical equivalent of saying that, if the court denied the sanctions

motion, defense counsel would not be prepared to go to trial on

November 29. Although defense counsel also said that Conlon was

not asking for a continuance, the message was clear: If the court

preserved the November 29 trial date, Conlon would be forced to

proceed to trial with unprepared counsel.

¶ 66 In light of defense counsel’s statements, the court could not

move forward with the November 29 trial date. No responsible

court would knowingly force a defendant to go to trial without the

effective assistance of counsel. An unprepared lawyer is an

ineffective one. See People v. Scales, 763 P.2d 1045, 1048 (Colo.

1988) (“Denial of adequate time to prepare for trial would have

provided [the defendant] with a claim for ineffective assistance of

counsel . . . .”); People v. White, 514 P.2d 69, 71 (Colo. 1973)

(“Without knowledgeable trial preparation, defense counsel cannot

reliably exercise legal judgment and, therefore, cannot render

reasonably effective assistance to his client.”).

29
¶ 67 For these reasons, we hold that, under the circumstances,

defense counsel effectively requested a continuance of the trial. See

Scales, 763 P.2d at 1047-48 (noting that a continuance may be

chargeable to the defendant if caused by some “affirmative action

evincing consent by the defendant”); accord State v. Dale, 360

N.W.2d 687, 690 (S.D. 1985) (holding that the defendant’s objection

that he could not prepare his defense by the proposed trial dates

was, in effect, a request for a continuance); cf. People v. Wilson, 972

P.2d 701, 705 (Colo. App. 1998) (explaining that defense counsel’s

motion to dismiss for violation of speedy trial was the equivalent of

a motion for a continuance when defense counsel said that, due to

scheduling problems, no attorneys in his office were available on

the trial date); People v. Chavez, 650 P.2d 1310, 1310-11 (Colo.

App. 1982) (holding that a continuance premised on defense

counsel’s unavailability for trial before the speedy trial deadline was

chargeable to the defendant). But see People v. Bell, 669 P.2d 1381,

1384 (Colo. 1983) (“The key to interpreting [section 18-1-405(6)(f)] is

to determine whether the defendant caused the delay. If the delay

is caused by, agreed to, or created at the instance of the defendant,

30
it will be excluded from the speedy-trial calculation made by the

court.”).

¶ 68 Thus, we must analyze whether defense counsel’s effective

request for a continuance at the November conference was

chargeable to Conlon even though the delay was solely due to the

prosecution’s failure to timely produce the additional phone

records.

b. Under Duncan, the Continuance of
the November 29 Trial Date Was Chargeable to Conlon

¶ 69 We turn to Duncan to determine whether defense counsel’s

effective request for a continuance at the November conference

resulted in a waiver of Conlon’s statutory speedy trial right.

¶ 70 The supreme court held in Duncan, “In the absence of any bad

faith attributable to the prosecution’s late disclosure of [discovery],

the legal consequence of defense counsel’s request for a

continuance” was to “extend the period within which trial could be

commenced for an additional six months from the date of the

continuance.” 31 P.3d at 878. A “finding concerning the

prosecution’s motivation and intent is a finding of fact” to which an

appellate court must defer so long as it is “not tainted by legal error

31
or otherwise clearly erroneous.” People v. August, 2016 COA 63,

¶ 23, 375 P.3d 140, 145. “The trial court’s finding whether the

prosecution has acted in bad faith will be upheld if supported by

the record.” People v. McMurtry, 101 P.3d 1098, 1101 (Colo. App.

2003), aff’d on other grounds, 122 P.3d 237 (Colo. 2005).

¶ 71 Despite the court’s clear frustration with the prosecution’s

failure to comply with its September 27 discovery order, the court

did not find that the failure resulted from bad faith, “gross

negligence,” or a “flagrant disregard or dereliction” of the

prosecution’s discovery obligations. The court charitably suggested

that, although its order was clear to the court, it was perhaps not

clear to the prosecution.

¶ 72 Nothing in the court file contradicts the prosecutor’s assertion

that she did not know before the November conference that law

enforcement had possessed a copy of the additional phone records

all along. Although the prosecutor may have been ignorant of basic

law enforcement procedures, the record shows that the prosecutor

told the court, more than six months before the November

conference, that she had provided the court with the only complete

copy of the contents of the victim’s phone. She reiterated that

32
erroneous statement in her response to the sanctions motion. The

prosecutor’s representations throughout the litigation support the

court’s reaction upon learning that defense counsel had never

received the additional phone records — expressing frustration with

the prosecutor but not finding bad faith or its equivalent.

¶ 73 In the absence of a finding of prosecutorial bad faith, under

Duncan, we are compelled to hold that defense counsel’s effective

request for a continuance at the November conference was

chargeable to Conlon.

¶ 74 When it reset the trial at the November readiness conference,

the court in effect reaffirmed its finding at the September

conference that Conlon had waived speedy trial. Although, as

explained in Part II.C.1.a above, the court erred by making that

finding at the September conference, the timing of that finding, and

the court’s reiteration of it at the November conference, is of no

consequence. Even if the court had not previously found that

Conlon waived the prior December 1 speedy trial deadline, at the

November conference, the court was required to make such a

finding under Duncan because defense counsel requested a

continuance by saying he could not proceed to trial on November 29

33
unless the court granted the sanctions motion and the court denied

that motion.

¶ 75 We acknowledge that the reasoning of Duncan forces defense

attorneys to choose between two of their clients’ rights — the right

to effective assistance of counsel and the statutory right to a speedy

trial — when the defense receives a massive volume of discovery

materials only days before trial as a consequence of the prosecutor’s

lack of diligence. Conlon and his counsel bore no responsibility for

this situation.

¶ 76 But in Duncan, the supreme court decided that the degree of

the prosecutor’s misfeasance or malfeasance was the only factor a

court may consider in determining whether a defendant who did not

receive voluminous discovery materials until the eleventh hour as a

consequence of the prosecutor’s actions or inaction waived speedy

trial. In this case, regardless of whether the prosecutor acted in

bad faith in not producing the additional phone records, the impact

on the defendant would have been the same: Defense counsel was

forced to choose between proceeding to trial without adequate

preparation and waiving Conlon’s speedy trial right. Because the

statutory speedy trial right must only yield to the defendant’s other

34
fundamental constitutional rights when “necessary to protect [the

defendant’s] constitutional right to effective assistance of counsel,”

Gallagher, 933 P.2d at 589, it is difficult to fathom why the

defendant’s speedy trial right must be sacrificed when the

prosecutor delayed the production of the discovery materials in bad

faith but not when the delay is attributable to the prosecutor’s lack

of diligence and ignorance of the discovery rules. Yet as an

intermediate appellate court, we are bound to follow the supreme

court’s decisions. See People v. Allen, 111 P.3d 518, 520 (Colo.

App. 2004).

¶ 77 Moreover, we recognize that Arledge, Gallagher, and Duncan,

read together, hold trial courts to a higher standard than

prosecutors when a court’s delay in taking an action forces a

continuance of the trial date. As we explain above, a continuance

resulting from a trial court’s last-minute action that hamstrings the

defense’s ability to prepare for trial adequately is not charged

against the defendant under section 18-1-405, regardless of

whether the court acted in bad faith. But under Duncan, a

prosecutor’s delay that forces a continuance results in a waiver of

35
the defendant’s statutory speedy trial rights unless the trial court

finds the prosecutor acted in bad faith.

¶ 78 Thus, under Duncan, the absence of a finding that the

prosecutor acted in bad faith means that Conlon is deemed to have

waived speedy trial even though his counsel had no choice but to

implicitly request a new trial date so the defense would have

sufficient time to review the 31,000 phone records that had yet to

be produced to the defense. See 31 P.3d at 877.

¶ 79 We appreciate the untenable position in which the court and

the prosecution placed defense counsel under Duncan. The defense

was forced to choose between going to trial without a meaningful

opportunity to review 31,000 potentially relevant phone records and

to determine whether, based on those records, the defense needed

to call additional witnesses — which could later lead to a Crim. P.

35(c) motion premised on trial counsel’s ineffectiveness — and

asking for a continuance that, under Duncan, necessarily resulted

in a waiver of Conlon’s statutory right to a speedy trial. Duncan

acknowledged such dilemmas but brushed them aside as

inevitable. See 31 P.3d at 877 (“A good many factors may influence

a defendant to make the tactical choice to request a continuance,

36
including not only some for which he cannot be held responsible

but also many over which he has absolutely no control.”).

¶ 80 In sum, we hold that the court did not violate Conlon’s

statutory speedy trial right.

III. Constitutional Challenge to
Section 18-3-602(1)(c) of the Stalking Statute

¶ 81 Conlon was charged with and convicted of stalking under

section 18-3-602(1)(c) based, in large part, on two exhibits

containing nearly 200 pages of abusive messages that Conlon sent

the victim over a one-year period.

¶ 82 Section 18-3-602(1)(c) provides, as relevant here, that a person

commits stalking if he knowingly “[r]epeatedly follows, approaches,

contacts, places under surveillance, or makes 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.”

¶ 83 Conlon contends that section 18-3-602(1)(c) is facially

overbroad. We are unpersuaded.

37
A. Applicable Law and Standard of Review

¶ 84 The United States and Colorado Constitutions respectively

provide that “no law ‘abridging’ or ‘impairing’ freedom of speech

shall be enacted.” People v. Moreno, 2022 CO 15, ¶ 10, 506 P.3d

849, 853 (first quoting U.S. Const. amend. I; and then quoting Colo.

Const. art. II, § 10). “Still, the right to free speech is not absolute,

and the government may create, and courts have upheld, statutes

proscribing certain categories of unprotected speech.” Id. “Even if a

statute aims to proscribe only unprotected speech, it may be struck

down as facially overbroad if it substantially infringes upon

constitutionally protected speech.” Id. at ¶ 11, 506 P.3d at 853.

¶ 85 “[A] statute is facially overbroad if it sweeps so

comprehensively as to substantially include within its proscriptions

constitutionally protected speech.” Id. at ¶ 14, 506 P.3d at 853

(quoting Bolles v. People, 541 P.2d 80, 82 (Colo. 1975)). Further, a

statute is unconstitutional only if its overbreadth is “real and

substantial” in relation to its plainly legitimate sweep. Id. at ¶ 16,

506 P.3d at 854 (quoting People v. Graves, 2016 CO 15, ¶ 14, 368

P.3d 317, 323); see also Moody v. NetChoice, LLC, 603 U.S. 707,

723 (2024) (“The question is whether ‘a substantial number of [the

38
law’s] applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.’” (citation omitted)).

¶ 86 We employ a three-step analysis to determine whether a

statute is facially overbroad. Moreno, ¶ 17, 506 P.3d at 854. First,

we construe the challenged statute to establish its scope. Id.

Second, we determine whether the statute as construed prohibits “a

substantial amount of protected speech.” Id. Third, if possible, we

apply a limiting construction or a partial invalidation to “honor the

legislature’s choices while preserving the statute’s

constitutionality.” Id.

¶ 87 We review questions concerning the constitutionality of a

statute de novo. Id. at ¶ 9, 506 P.3d at 852.

¶ 88 In People v. Cross, the Colorado Supreme Court considered

whether the culpable mental state of “knowingly” applies to the

element of section 18-3-602(1)(c) requiring that the defendant acted

“in a manner that would cause a reasonable person to suffer

serious emotional distress and does cause that person . . . to suffer

serious emotional distress.” 127 P.3d 71, 72 (Colo. 2006) (quoting

§ 18-9-111(4)(b)(III), C.R.S. 2005, repealed, amended, and relocated,

§ 18-3-602(1)(c), C.R.S. 2011 (effective Aug. 11, 2010)), abrogated

39
by, Counterman v. Colorado, 600 U.S. 66 (2023). The defendant in

Cross argued that the “knowingly” mens rea must apply to that

statutory element “to avoid constitutional vagueness and

overbreadth problems.” Id. at 78. The supreme court disagreed,

concluding that the mental state of “knowingly” did not apply to the

“serious emotional distress” element of section 18-3-602(1)(c) and

that the element must be measured by an objective standard. Id.

¶ 89 In response to the defendant’s overbreadth argument, the

supreme court reiterated the principle that “a statute is not

unconstitutionally overbroad simply because it could possibly be

applied in some unconstitutional manner.” Id. at 79. It held that

the defendant failed to show that the statute “sweeps so

comprehensively as to include a substantial amount of

constitutionally protected speech” and that the General Assembly’s

purpose in enacting the statute was “to criminalize conduct that

involves a ‘severe intrusion upon the victim’s personal privacy and

autonomy, with an immediate and long-lasting impact on quality of

life as well as risks to security and safety of the victim . . . even in

the absence of express threats of physical harm.’” Id. (quoting

40
§ 18-9-111(4)(a), C.R.S. 2005, repealed, amended, and relocated,

§ 18-3-601(1)(f), C.R.S. 2011 (effective Aug. 11, 2010)).

¶ 90 In 2023, the United States Supreme Court considered a

similar argument concerning the culpable mental state for the

“serious emotional distress” element of section 18-3-602(1)(c) that

Cross had considered seventeen years earlier. See Counterman, 600

U.S. at 69. The United States Supreme Court held that, when a

defendant’s true threats form the basis of a prosecution under

section 18-3-602(1)(c), the First Amendment requires that the

prosecution prove that the defendant had some subjective

understanding of the threatening nature of his statements, and that

a mental state of recklessness was sufficient. Id. at 69, 72. The

Colorado Supreme Court subsequently concluded that prosecutions

under section 18-3-602(1)(c) based exclusively on a defendant’s

“repeated, unwelcome, and content-neutral conduct,” and not on

the content of threatening statements, are not subject to

“Counterman’s recklessness requirement.” People v. Crawford, 2025

CO 22, ¶ 22, 568 P.3d 426, 432. Neither Counterman nor Crawford

addressed whether section 18-3-602(1)(c) is unconstitutionally

overbroad on its face.

41
¶ 91 Counterman abrogated Cross’s holding on the culpable mental

state for the “serious emotional distress” element of section

18-3-602(1)(c), but it did not wholly invalidate Cross. Because

Counterman and its progeny did not address whether section

18-3-602(1)(c) is facially overbroad, we conclude that Cross remains

good law on that point. See People v. Pellegrin, 2021 COA 118,

¶ 28, 500 P.3d 384, 392 (holding that the division was bound by the

Colorado Supreme Court’s conclusion in Cross that section

18-3-602(1)(c) is not facially overbroad), aff’d on other grounds,

2023 CO 37, 532 P.3d 1224.

B. Section 18-3-602(1)(c) Is Not Unconstitutionally Overbroad

¶ 92 In our view, Cross is fatal to Conlon’s constitutional

overbreadth argument. Cross addressed and rejected the identical

constitutional argument that Conlon presents in his appeal, and it

remains good law notwithstanding Counterman and the cases that

followed it. We are bound by the Colorado Supreme Court’s

decisions. People v. Cox, 2021 COA 68, ¶ 8, 493 P.3d 914, 916.

¶ 93 In adhering to the supreme court’s holding in Cross, we are in

good company; at least two other divisions of this court have done

42
the same. See Pellegrin, ¶ 32, 500 P.3d at 393; People v.

Richardson, 181 P.3d 340, 344 (Colo. App. 2007).

¶ 94 But even assuming, without deciding, that the supreme

court’s statements in Cross are nonbinding dicta, as Conlon

asserts, the reasoning in Cross is persuasive, as is that in Pellegrin

and Richardson. We accordingly apply it here.

¶ 95 Although Conlon provides several examples of potentially

unconstitutional applications of the statute, he has not shown that

those applications “substantially outweigh its constitutional ones.”

Moody, 603 U.S. at 724; see Cross, 127 P.3d at 79. Because

section 18-3-602(1)(c) criminalizes “only acts of a particular nature”

that “hav[e] a particular effect,” a substantial amount of

constitutional speech is excluded from its sweep. Richardson, 181

P.3d at 344. The statute targets “repeated conduct” or “speech

[that] is part of a series of conduct” that would cause a reasonable

person to suffer serious emotional distress. Pellegrin, ¶ 34, 500

P.3d at 393; cf. Moreno, ¶ 24, 506 P.3d at 855 (holding that the

phrase “intended to harass” in the harassment statute

encompasses a substantial amount of protected speech in the

43
internet era and is susceptible of no limiting construction that

would render it constitutional).

¶ 96 In his supplemental brief, Conlon invites us to view this issue

as an as-applied challenge, rather than as a facial challenge, to

section 18-3-602(1)(c). Because he did not present that argument

to the trial court or develop it in his opening brief, we decline to

address it. See People v. Stone, 2020 COA 23, ¶ 49, 471 P.3d 1148,

1157 (“We do not consider as-applied challenges that are not

presented to the trial court because ‘it is imperative that the trial

court make some factual record that indicates what causes the

statute to be unconstitutional as applied.’” (citation omitted));

People v. Dominguez, 2024 COA 32, ¶ 11, 551 P.3d 1205, 1208

(declining to address an issue raised for the first time in a reply

brief) (cert. granted Dec. 23, 2024).

IV. Sufficiency of the Evidence

¶ 97 Conlon next contends that sufficient evidence did not support

his conviction for violating a mandatory protection order. He

specifically argues that the prosecution failed to prove that he

violated a protection order between March 27, 2019, and August

25, 2019, as charged, because it never introduced into evidence the

44
order he allegedly violated. He notes that the prosecution instead

introduced into evidence a different order — one dated November

10, 2020. We are unpersuaded.

A. Additional Background

¶ 98 The victim testified at trial that the court entered a mandatory

protection order against Conlon in March or April of 2019. The

prosecutor showed the victim a protection order and asked her

whether it appeared to be a “true and correct copy” of the protection

order the court entered at that time. The victim responded yes.

The exhibit was a protection order entered on November 10, 2020.

¶ 99 The victim testified to her understanding that the 2019

protection order provided that Conlon could only communicate with

her electronically. She explained that the tone of his electronic

communications to her changed after the court entered the order.

She said that, following the entry of the order, Conlon’s

communications to her became “much nicer,” more “pleasant,” and

less threatening.

¶ 100 The prosecution also admitted into evidence 156 pages of text

messages and 44 pages of Facebook messages between Conlon and

the victim between September 2018 and August 2019. On March

45
27, 2019, Conlon sent the victim a text saying, in relevant part, “I

am texting you about kids & finances on the authority of the court

order issued yesterday and a text confirmation from [an employee

of] social services.” (Emphasis added.)

¶ 101 On August 19, 2019, and August 24, 2019, respectively,

Conlon sent the following Facebook messages to the victim:

• “Please go to division 407, ask the prosecutors to call my

case 19CR875 and ask the judge for phone calls and in

person contact. We have to communicate for the boys &

finances. I want to communicate with you. I want to see

you in person. Will you accept a hug from me?”

• “I will be asking the court to allow phone and in person

contact at my next hearing. I just want those options

available and I wouldn’t be initiating those contacts

unless approved by you.”

¶ 102 In his closing argument, defense counsel argued that, because

the only protection order admitted into evidence was the one dated

2020, there was reasonable doubt whether Conlon had violated a

protection order entered between March 27, 2019, and August 25,

2019.

46
¶ 103 The jury picked up on this point. During its deliberations, the

jury asked the court two related questions: (1) “Is there a protection

order that is missing from the evidence provided to the jury?”; and

(2) “If a protection order exists or existed between Mr. and Mrs.

Conlon, what dates were covered under that protection order?” In

response, the court provided the jury with the 2020 protection order

(which it had inadvertently omitted from the exhibits sent to the

jury) and told the jury that it had all the evidence it was to consider.

The jury found Conlon guilty of violating a protection order between

March 27, 2019, and August 25, 2019.

¶ 104 We note that the appellate record contains “People’s Trial

Exhibit 8,” which is a protection order dated March 26, 2019, as

well as “People’s Corrected Exhibit 8,” which is the 2020 protection

order. According to defense counsel’s post-trial motion for

judgment of acquittal, the prosecutor added the 2019 protection

order to the record after the trial and labeled it “People’s Trial

Exhibit 8.” That exhibit was not admitted into evidence.

¶ 105 After defense counsel informed the prosecutor of this mistake,

the prosecutor filed the 2020 protection order as “People’s Corrected

47
Exhibit 8.” As far as we can determine from the record, the jury

never saw the 2019 protection order.

B. Applicable Law and Standard of Review

¶ 106 “The Due Process Clauses of the United States and Colorado

Constitutions require proof of guilt beyond a reasonable doubt on

each of the essential elements of a crime.” People v. Duncan, 109

P.3d 1044, 1045 (Colo. App. 2004). To decide whether the

prosecution presented sufficient evidence, we consider “whether the

relevant evidence, both direct and circumstantial, when viewed as a

whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.” People v. Donald, 2020 CO 24, ¶ 18, 461 P.3d 4, 7 (quoting

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)). In applying the

substantial evidence test, we must give the prosecution the benefit

of every inference reasonably drawn from the evidence. Gorostieta

v. People, 2022 CO 41, ¶ 17, 516 P.3d 902, 905. It does not matter

that, after reviewing the evidence, we may have reached a different

conclusion than did the trier of fact. Id.

48
¶ 107 “To convict a criminal defendant, a jury must unanimously

agree that the prosecution has proven all elements of the charged

offense beyond a reasonable doubt.” Id. at ¶ 18, 516 P.3d at 905.

“We generally do not assess the credibility of witnesses or resolve

inconsistencies or contradictions in testimony.” People v. Liebler,

2022 COA 21, ¶ 20, 510 P.3d 548, 553. Appellate courts may not

serve as jurors or invade the province of the jury “to perform its

historic fact-finding function.” People v. Perez, 2016 CO 12, ¶ 25,

367 P.3d 695, 701 (quoting People v. Gonzales, 666 P.2d 123, 128

(Colo. 1983)).

¶ 108 “[S]ufficiency claims may be raised for the first time on appeal

and are not subject to plain error review, and therefore, appellate

courts should review unpreserved sufficiency claims de novo.”

McCoy v. People, 2019 CO 44, ¶ 19, 442 P.3d 379, 385.

C. The Evidence Was Sufficient to Support
Conlon’s Conviction for Violation of a Protection Order

¶ 109 The prosecution bore the burden of proving that, in the State

of Colorado between March 27, 2019, and August 25, 2019, Conlon

(1) was “personally served with a protection order” or had “actual

knowledge” of its contents from the court or law enforcement

49
personnel; and (2) knowingly “[c]ontact[ed], harasse[d], injure[d],

intimidate[d], molest[ed], threaten[ed], or touche[d] the protected

person.” § 18-6-803.5(1)(a)(I), C.R.S. 2025; see People v. Garcia,

2017 COA 1, ¶ 37, 452 P.3d 55, 61 (“The mental state of knowingly

applies to all relevant elements of the offense of violation of a

protection order . . . .”), aff’d, 2019 CO 64, 445 P.3d 1065.

¶ 110 Conlon contends that the prosecution failed to prove that he

violated a protection order between March 27, 2019, and August

25, 2019, because the only protection order admitted into evidence

was the one dated November 10, 2020. The People counter that the

evidence at trial and the reasonable inferences drawn from that

evidence were sufficient to support the jury’s conclusion that

Conlon violated a protection order that was in effect between the

specified dates.

¶ 111 As an initial matter, we note that, although the appellate

record contains a 2019 protection order entered against Conlon,

that order plays no role in our analysis because it was not entered

into evidence at trial. The question before us is whether the

evidence presented to the jury was substantial and sufficient to

support a conclusion by a reasonable mind that Conlon is guilty of

50
violating a protection order in 2019 beyond a reasonable doubt.

See People v. Coahran, 2019 COA 6, ¶ 41, 436 P.3d 617, 626

(holding that, in conducting a sufficiency of the evidence analysis,

we “consider the evidence admitted at trial”).

¶ 112 We conclude that the evidence was sufficient to prove that

Conlon violated a protection order between the specified dates, and

the jury could have reasonably found that the prosecution proved

each element of the offense beyond a reasonable doubt, for the

following two reasons.

¶ 113 First, the victim testified that Conlon was the subject of a

protection order that was in effect in March or April of 2019. She

said that the 2020 protection order was a fair and accurate copy of

the order the court entered in March 2019. Further, she testified

that the tone of Conlon’s electronic communications to her changed

after the court entered the 2019 order for protection, becoming

more pleasant and less threatening. It was the jury’s responsibility

alone to weigh the victim’s credibility. Liebler, ¶ 20, 510 P.3d at

553; see also People v. Poe, 2012 COA 166, ¶ 14, 316 P.3d 13, 16

(“It is the fact finder’s role to weigh the credibility of witnesses, to

51
determine the weight to give all parts of the evidence, and to resolve

conflicts, inconsistencies, and disputes in the evidence.”).

¶ 114 Second, the victim’s testimony was consistent with Conlon’s

text messages to the victim that were introduced into evidence at

trial. Conlon’s electronic communications to the victim reflect a

change in tone after, according to the victim, the court entered a

protection order against Conlon. Significantly, as noted above,

Conlon acknowledged the existence of a court order on March 27,

2019. On that date, he sent the victim a text saying, “I am texting

you about kids & finances on the authority of the court order

issued yesterday . . . .” This text message alone was sufficient

evidence from which the jury could find that a protection order was

entered against Conlon in March 2019 and that he had

contemporaneous knowledge of it.

¶ 115 The consistency between the dates of these text messages and

when, according to the victim, the court entered a protection order

further supports the jury’s finding that the prosecution proved all

the elements of the protection order count. Cf. Liebler, ¶ 12, 510

P.3d at 552 (“[B]ecause the only evidence of force . . . was

contradicted by the store surveillance video,” the division concluded

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there was insufficient evidence to establish the force element of the

crime.).

¶ 116 Moreover, no evidence contradicted the victim’s testimony

regarding the existence of a protection order in 2019. And Conlon

does not cite, and we are not aware of, any authorities holding that

a prosecutor can only prove a violation of a protection order

through the protection order itself.

¶ 117 For these reasons, we conclude the prosecution introduced

substantial and sufficient evidence to support Conlon’s conviction

for violating a protection order.

V. Disposition

¶ 118 The judgment is affirmed.

JUDGE PAWAR and JUDGE LUM concur.

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