People v. Herron

• Decision Date: 10 November 2010
• Docket Number: No. 08CA0217.,08CA0217.
• Citation: 251 P.3d 1190
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Demetrius HERRON, Defendant–Appellant.
• Court: Colorado Court of Appeals

251 P.3d 1190

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

v.Demetrius HERRON, Defendant–Appellant.

No. 08CA0217.

Colorado Court of Appeals, Div. IV.

Oct. 14, 2010.Rehearing Denied Nov. 10, 2010.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Harvey & Owens Law Firm, Cynthia A. Harvey, Victor T. Owens, Castle Rock, Colorado, for Defendant–Appellant.Opinion by Chief Judge DAVIDSON.

Defendant, Demetrius Herron, appeals from the judgment entered on a jury verdict finding him guilty of two counts of stalking and two counts of misdemeanor harassment. He also appeals from his sentence as a habitual criminal. We affirm in part, vacate in part, and remand.

I. Background

In February 2006, defendant approached Ms. R while she was walking on a treadmill in her apartment complex's exercise room. Defendant did not live in the apartment complex. They spoke for a short time, but Ms. R found defendant's questions to be increasingly personal, and told him she did not want to talk any longer. According to her testimony, defendant became angry, approached within arm's length of her, and asked whether she had an issue with his race. Defendant and Ms. R were of different races.

Feeling threatened, Ms. R removed a pair of scissors from her pocket. Defendant backed away, saying: “What do you think, I am going to rape you?” Then, he told her he had seen her leaving for church the previous Sunday morning, accurately described the shirt she had been wearing, and left the room.

On May 3, Ms. R returned home from work around 1 a.m. Taking the stairs to her third floor apartment, she encountered defendant on the second floor landing. After she passed him, he followed her up the stairs, saying, “Hello [Ms. R]. It's good to see you again.” Ms. R told defendant she would scream if he did not leave her alone.

Without answering, defendant walked past her and around a corner in the hallway. Ms. R could see his elbow protruding around the corner, however. Concerned that he was waiting to see which apartment she entered, she asked, “Do I need to call the police?” She saw his elbow withdraw.

Based on this evidence, a jury found defendant guilty of credible threat stalking, former § 18–9–111(4)(b)(I) (now codified at § 18–3–602(1)(a), C.R.S.2010); emotional distress stalking, former § 18–9–111(4)(b)(III) (now codified at § 18–3–602(1)(c), C.R.S.2010); and two counts of misdemeanor harassment, § 18–9–111(1)(c), C.R.S.2010. The court subsequently found him guilty of three habitual criminal counts, and sentenced him to two concurrent twelve-year terms on his stalking convictions, and two concurrent six-month terms on his harassment convictions.

II. Double Jeopardy

On appeal, defendant contends that his two stalking convictions constituted multiple punishments for the same offense. Because we agree with his double jeopardy argument, we do not address his alternative contention that the court erred in failing to require the prosecution to specify what conduct comprised emotional distress stalking and credible threat stalking or to give the jury a unanimity instruction concerning the stalking counts.

A. Standard of Review

Error resulting in multiplicitous convictions implicates a fundamental right, is obvious, and affects the fairness and integrity of the proceedings. See People v. Vigil, 251 P.3d 442, 448–49 (Colo.App.2010) (addressing multiplicity issue sua sponte). Thus, although defendant did not raise the multiplicity issue in the trial court, we will review it for plain error. People v. Flowers, 128 P.3d 285, 290 (Colo.App.2005) (reviewing under a plain error standard defendant's double jeopardy argument raised for the first time on appeal); People v. Cruthers, 124 P.3d 887, 890 (Colo.App.2005) (same); People v. Olson, 921 P.2d 51, 53 (Colo.App.1996) (same).

Plain error “so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” People v. Kruse, 839 P.2d 1, 3 (Colo.1992) (quoting Wilson v. People, 743 P.2d 415, 420 (Colo.1987)); accord Flowers, 128 P.3d at 290.

B. Legal Framework

Multiplicity is “the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct.” Woellhaf v. People, 105 P.3d 209, 214 (Colo.2005) (citing People v. Borghesi, 66 P.3d 93, 98 (Colo.2003)). Unless expressly authorized by the General Assembly, multiplicitous convictions violate the Double Jeopardy Clauses of the United States and Colorado Constitutions. U.S. Const. amend. V; Colo. Const. art. II, § 18; People v. Abiodun, 111 P.3d 462, 465 (Colo.2005).

In addressing a multiplicity challenge, the proper inquiry is whether the General Assembly's definition of the crime charged encompasses a continuous course of conduct. People v. Renander, 151 P.3d 657, 661 (Colo.App.2006). This requires consideration of the statutorily allowable unit of prosecution: “the manner in which a criminal statute permits a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses.” Woellhaf, 105 P.3d at 215; see also Vigil, 251 P.3d at 448–49. To determine the unit of prosecution, we look to the statute's plain meaning, within the context of the purpose for which it was enacted. People v. Montez, ––– P.3d ––––, –––– (Colo.App.2010).

C. Application

Former section 18–9–111(4)(b), as relevant here, provided:

A person commits stalking if directly, or indirectly through another person, such person knowingly:

(I) Makes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person ...; or

(III) Repeatedly 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.

Cf. § 18–3–602(1)(a), (c) (language substantially identical to § 18–9–111(4)(b)(I), (III)).

We conclude from the plain words of the statute that the legislatively defined unit of prosecution for the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance. Therefore, we further conclude that defendant's course of conduct directed at Ms. R amounted to a single crime for which the General Assembly has not authorized multiple punishments.

We observe that, by its terms, the statute does not contain any specific authorization for multiple punishments for each act of stalking. Instead, when, as here, the legislature joins “a number of acts ... as a disjunctive series,” rather than describes them in different provisions, under different titles, it defines alternative means of committing a single offense. Abiodun, 111 P.3d at 465–66; accord Woellhaf, 105 P.3d at 217 (“The disjunctive ‘or’ demarcates different categories.”); People v. Holmes, 129 Colo. 180, 183, 268 P.2d 406, 407 (1954) (“[B]y the use of the word ‘or’ [the forgery statute] provides disjunctively the ways of its violation....”); Wright v. People, 116 Colo. 306, 310, 181 P.2d 447, 449 (1947).

Furthermore, the statute requires that the acts constituting stalking, namely, following, approaching, contacting, or placing another under surveillance, see § 18–9–111(4)(b)(I), (III), must be performed “repeatedly.” Consequently, per victim, stalking can occur only when there is conduct comprising two or more occurrences of the specified acts. See Abiodun, 111 P.3d at 466 (where “acts chosen for specific inclusion [in a criminal statute] are not themselves mutually exclusive but overlap in various ways [they] cover a continuum of conduct”); accord People v. Berner, 42 Colo.App. 520, 521–22, 600 P.2d 112, 113 (1979) (where two blows delivered to one victim as part of “a continuous harangue to extract information,” both blows part of single criminal transaction); cf. Borghesi, 66 P.3d at 95 (where robber took store's property from two employees in the course of a single robbery, two convictions not multiplicitous because robbery statute intended to protect each person in control of property).

Thus, for defendant to be convicted of stalking, he had to have followed, approached, contacted, or surveiled Ms. R on at least two occasions. To be convicted of a second stalking offense, he would have had to so act, in a separate transaction that is factually distinct from the first, on at least two more occasions. See Quintano v. People, 105 P.3d 585, 591–92 (Colo.2005) (listing factors such as lapse of time between incidents, location of the incidents, intervening events, and the defendant's intent as evidenced by his actions and statements, to determine whether incidents were sufficiently distinct to constitute a separate transaction); see also Woellhaf, 105 P.3d at 219.

Here, the evidence was not sufficient to establish a second stalking offense. The three occasions on which defendant followed, watched, or approached Ms. R—when defendant observed her leaving for church; the encounter in the fitness room; and the encounter in the stairway—were not factually distinct. Although approximately three months elapsed between the first two occasions and the third, all took place in or around the victim's apartment complex, and defendant's conduct indicated that his intent to make advances toward Ms. R remained consistent. Moreover, during the second and third encounters, defendant referenced a prior encounter, and no intervening events occurred to sever the connection between each of his advances.

Even if the third encounter, which took place three months after the first two encounters (which had taken place within one week of each other) was factually distinct from the first two, it would not support a second count of stalking because no additional contact or...