People v. Morris

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.

21