People v. Counterman

• Decision Date: 22 July 2021
• Docket Number: Court of Appeals No. 17CA1465
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Billy Raymond COUNTERMAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

497 P.3d 1039

2021 COA 97

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Billy Raymond COUNTERMAN, Defendant-Appellant.

Court of Appeals No. 17CA1465

Colorado Court of Appeals, Division II.

Announced July 22, 2021

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

Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶ 1 Bringing an as-applied constitutional challenge, Billy Raymond Counterman appeals his conviction for stalking (serious emotional distress) under section 18-3-602(1)(c), C.R.S. 2020, as a violation of both his federal and Colorado constitutional rights to freedom of speech. Specifically, he contends that section 18-3-602(1)(c) impermissibly criminalizes his protected statements contained in Facebook messages that he sent to the victim — a local musician and public figure.

¶ 2 Applying both federal and Colorado law, we conclude that Counterman's statements were true threats and, thus, unprotected speech under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Accordingly, section 18-3-602(1)(c) isn't unconstitutional as applied to him.

¶ 3 We further hold that the trial court didn't plainly err by failing to sua sponte instruct the jury on true threats or to require the jury to find that Counterman's statements were true threats as an additional element of stalking (serious emotional distress).

¶ 4 Finally, we resolve whether the trial court's response to a jury question, which told the jury that it could consider evidence that the victim suffered serious emotional distress outside of the timeframe in the charging document, was a constructive amendment of the charge or a simple variance and whether it impermissibly lowered the prosecution's burden of proof. We conclude that the response was a simple variance and that it didn't lower the prosecution's burden of proof. Accordingly, we affirm Counterman's conviction.

I. Background

¶ 5 C.W. is a singer-songwriter based in Colorado. C.W. had two Facebook profiles — a public account for promoting her music and a private account for personal use.

¶ 6 In 2014, Counterman sent a Facebook friend request to C.W.¹ Over the next two years Counterman sent "clusters" of messages to C.W.’s accounts. C.W. deleted some of the messages and didn't respond to any of them. She said the messages were "weird" and "creepy." C.W. also blocked Counterman on Facebook multiple times to prevent him from sending her messages, but he would create new Facebook accounts and continue to send her messages.

¶ 7 In 2016, C.W. spoke with a family member about the messages Counterman had sent her. She was "fearful" of Counterman and said that his messages caused her "serious" concern. She was "extremely scared" of being hurt or killed after Counterman sent her messages saying that he wanted her to die. And Counterman's messages alluded to making "physical sightings" of C.W. in public. For example, in one of his messages Counterman told C.W. that he had witnessed her doing "things that [she did] out and about."

¶ 8 In April 2016, C.W. (along with the family member in whom she had confided) contacted an attorney to determine what actions she could take to protect herself from Counterman. In the course of meeting with this attorney, C.W. learned that Counterman was serving probation for a federal offense.

¶ 9 She said that this "scared" her, and she then reported Counterman to law enforcement. C.W. obtained a protective order against Counterman and cancelled some of her planned performances because she worried that he would show up at the venue. Law enforcement arrested Counterman on May 12, 2016.

¶ 10 The People charged Counterman with one count of stalking (credible threat), section 18-3-602(1)(b) ; one count of stalking (serious emotional distress), section 18-3-602(1)(c) ; and one count of harassment, section 18-9-111(1)(e), C.R.S. 2020. Before trial, the prosecution dismissed the count of stalking (credible threat).

¶ 11 Counterman filed a motion to dismiss the remaining counts of stalking (serious emotional distress) and harassment. He asserted that sections 18-3-602(1)(c) and 18-9-111(1)(e), if applied to his Facebook messages, would violate his right to free speech under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Specifically, he contended that his messages to C.W. weren't true threats and, thus, his speech was protected from criminal prosecution. The trial court denied the motion.

¶ 12 On the first day of trial, the prosecution dismissed the harassment count, leaving only the count of stalking (serious emotional distress) under section 18-3-602(1). To convict Counterman of this offense, the prosecution was required to prove, beyond a reasonable doubt, that "directly, or indirectly through another person," Counterman knowingly

[r]epeatedly follow[ed], approache[d], contact[ed], place[d] under surveillance, or ma[de] any form of communication with [C.W.], ... in a manner that would cause a reasonable person to suffer serious emotional distress and d[id] cause [C.W.] ... to suffer serious emotional distress.

§ 18-3-602(1)(c).

¶ 13 The jury found Counterman guilty of stalking (serious emotional distress). The trial court sentenced him to four-and-a-half years in prison.

II. Analysis

¶ 14 Counterman raises two categories of contentions on appeal — constitutional and instructional. We address each in turn.

A. Constitutionality of Section 18-3-602(1)(c) As Applied to Counterman's Facebook Messages

¶ 15 Counterman asserts that section 18-3-602(1)(c) is unconstitutional as applied to his statements because they are protected speech, not unprotected true threats. In the alternative, he asserts that even if his statements were true threats, the court erred by failing to sua sponte instruct the jury on true threats. We address and reject each contention in turn.

1. Additional Facts

a. The Messages

¶ 16 Counterman sent numerous direct messages to C.W. over a two-year period. These messages were largely text, with the exception of some photographs that contained text within the image. The prosecution presented the following messages as evidence that Counterman stalked C.W.:

• "Was that you in the white Jeep?"

• "Five years on Facebook. Only a couple physical sightings."

• "Seems like I'm being talked about more than I'm being talked to. This isn't healthy."

• "I've had tapped phone lines before. What do you fear?"

• An image of stylized text that stated, "I'm currently unsupervised. I know, it freaks me out too, but the possibilities are endless."

• An image of liquor bottles that was captioned "[a] guy's version of edible arrangements."

• "How can I take your interest in me seriously if you keep going back to my rejected existence?"

• "Fuck off permanently."

• "Your arrogance offends anyone in my position."

• "You're not being good for human relations. Die. Don't need you."

• "Talking to others about me isn't prolife sustaining for my benefit. Cut me a break already.... Are you a solution or a problem?"

• "Your chase. Bet. You do not talk and you have my phone hacked."

• In a message sent the following day from the "[y]our chase" message, an apology that stated, "I didn't choose this life."

• "Staying in cyber life is going to kill you. Come out for coffee. You have my number."

• "A fine display with your partner."

• "Okay, then please stop the phone calls."

• "Your response is nothing attractive. Tell your friend to get lost."

b. Counterman's Motion to Dismiss and the Trial Court's Analysis

¶ 17 In a pretrial motion, Counterman's counsel argued that the charge for stalking (serious emotional distress) should be dismissed because, if applied to Counterman, section 18-3-602(1)(c) would criminalize his protected speech. Specifically, counsel asserted that none of his messages to C.W. was a true threat — a category of speech unprotected by the First Amendment and article II, section 10. Rather, counsel argued that Counterman's statements were protected speech under both the First Amendment and article II, section 10. Thus, criminal prosecution of him for those statements would violate his right to freedom of speech under both constitutions.

¶ 18 The trial court addressed Counterman's argument at a motions hearing. It noted that, under People v. Chase , 2013 COA 27, 411 P.3d 740, and People in Interest of R.D. , 2016 COA 186, 468 P.3d 9, rev'd and remanded , 2020 CO 44, 464 P.3d 717, "if something is found not to be a true threat, it's subject to First Amendment protection and it will not support a charge or a conviction of stalking or, I believe, harassment." But, if speech "is found to be a true threat, then it does not benefit from the First Amendment protection and it would provide a basis for a lawful charge and a lawful conviction of either stalking or harassment."

¶ 19 After applying the test articulated in Chase , the trial court denied Counterman's motion to dismiss, ruling that,

having considered the totality of the circumstances, I find that [Counterman's] statements rise to the level that presenting the charges to a jury to make a determination of whether the defendant's statements rise to the level of a true threat does not impermissibly intrude on or violate [his] First Amendment rights. I believe that [Counterman's] statements rise to the level of a true threat, although ultimately that will be a question of fact for the jury to decide.

¶ 20 However, the trial court warned the parties that "the evidence that comes in at trial may make [the court] reconsider [its order]" and that, if so, it would "go through this analysis again, just to make sure we don't have [a] First Amendment issue."

¶ 21 After the prosecution rested, Counterman's attorney renewed the motion to dismiss the stalking charge...