People v. Pellegrin

• Decision Date: 02 September 2021
• Docket Number: Court of Appeals No. 18CA1487
• Citation: 2021 COA 118,500 P.3d 384
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Trevor A. PELLEGRIN, Defendant-Appellant.
• Court: Colorado Court of Appeals

500 P.3d 384

2021 COA 118

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

v.Trevor A. PELLEGRIN, Defendant-Appellant.

Court of Appeals No. 18CA1487

Colorado Court of Appeals, Division I.

Announced September 2, 2021

Rehearing Denied October 7, 2021

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Yun and Graham^* , JJ., concur

Opinion by JUDGE FREYRE¶ 1 In this "revenge porn" case, we are asked to decide two novel issues. First, we are asked to interpret the term "breast of a female" under the posting a private image for harassment statute, § 18-7-107, C.R.S. 2020. Section 18-7-107(1)(a) criminalizes the posting or distribution of an image displaying the private intimate parts of an identified or identifiable person on social media or any website. "Private intimate parts" is defined as "external genitalia or the perineum or the anus or the pubes of any person or the breast of a female." § 18-7-107(6)(c). The statute, however, does not define "breast of a female."

¶ 2 We first conclude that "breast of a female" is ambiguous and can reasonably be interpreted to mean either the whole breast or simply a portion of the breast. We next conclude, consistent with the legislative history, that "breast of a female" means any portion of the female breast. Finally, we conclude that the statute is not unconstitutionally vague or overbroad.

¶ 3 We are also asked to decide whether harassment, § 18-9-111(1)(e), C.R.S. 2020, is a lesser included offense of stalking, § 18-3-602(1)(c), C.R.S. 2020, under section 18-1-408(5)(c), C.R.S. 2020. We conclude that the statutes fail the single distinction test set forth in section 18-1-408(5)(c) because they differ in more than one respect and, therefore, affirm the convictions for stalking, posting a private image for harassment, and harassment.

I. Background

¶ 4 Defendant, Trevor A. Pellegrin, and the victim began dating in 2016, and they moved in together shortly thereafter. They were later engaged. During their relationship, the victim allowed Pellegrin to take private, intimate photos of her in various stages of undress. The victim ended the relationship in April 2017 and moved into an apartment with her sister.

¶ 5 After the breakup, the victim had limited contact with Pellegrin until July 2017. Although the victim was in a new relationship with another man, she and Pellegrin spent time together between July 16 and July 19, 2017. Unbeknownst to Pellegrin, the victim had plans to see the other man on the evening of July 19.

¶ 6 After learning the victim was seeing someone else, Pellegrin repeatedly called and texted the victim from July 19 into July 20. He called the victim lewd names and sent nude photos he had taken of her during their relationship. Pellegrin threatened to post the nude photos online and to send them to her twelve-year-old brother. Distraught by Pellegrin's texts, the victim left work early on July 20 and reported the texts to the police. The police viewed the text messages, but they told the victim they could do nothing until Pellegrin posted the photos online. Pellegrin continued repeatedly texting the victim until July 23, 2017.

¶ 7 Between July 20 and July 23, 2017, multiple family members told the victim that her Facebook profile had been altered. She looked at her Facebook profile page and saw that her cover and profile photos had been changed to nude photos of her on a bed. The cover photo was of her nude buttocks, legs, and back, while her profile page displayed a nude photo of her lying on her stomach propped up by her elbows with the side of her right breast exposed. She recognized these as photos Pellegrin had taken while they were dating. Her profile biography had also been changed to say the victim was an "awful" person, a "cheater," and a "slut."

¶ 8 Additionally, on July 23, 2017, the victim received numerous text messages and photos from strangers responding to a Craigslist advertisement. They included messages saying unknown people were driving by her home and random, unknown photos of male genitalia. She learned that a Craigslist ad had been posted on the "casual encounters" board stating,

So my name's [victim's name] I live in the springs I'm looking for a few guys to come show me a good time I've never tried this but I'm willing to try it you can find me on Facebook just search my name [victim's name] my phone number is [victim's phone number] please call me with what your interested in and maybe we can get together tonight I stay off [directions to the victim's home]. Surprise me [emojis] text me a nude photo of yourself to get mines [emoji][.]

The ad also showed four photos of her — the two photos posted on Facebook, a photo of her clothed lying on a bed, and an additional photo showing the side of her nude breast.

¶ 9 A second Craigslist advertisement was posted on the "free stuff" board titled "Free engagement ring." The ad included the same photos as the "casual encounters" ad and it said, "Text or call for a free good time [the victim's phone number]."

¶ 10 The victim again contacted the police and provided a statement and her cell phone. The police arrested Pellegrin at his home. He admitted to posting "some photos that he considered butt shots, and that he had posted them for approximately an hour and then they were pulled down."

¶ 11 The State charged Pellegrin with one count of stalking, two counts of posting a private image for harassment (one for Facebook and one for Craigslist), and one count of harassment. At trial, defense counsel argued that the victim posted nude photos of herself and then blamed Pellegrin because she wanted to get him in trouble. A jury convicted Pellegrin of stalking, posting a private image for harassment (Craigslist), and harassment, but it acquitted him of the other charge of posting a private image for harassment (Facebook).

¶ 12 The court sentenced Pellegrin to three years of supervised probation and ninety days in jail. It also made a domestic violence finding and ordered Pellegrin to participate in a domestic violence evaluation and comply with its recommendations.

II. Jury Poll

¶ 13 Pellegrin first contends that the trial court abused its discretion by not granting a mistrial after polling revealed that the verdicts were not unanimous. He asserts that the manner in which the court conducted the jury poll was coercive. We disagree.

A. Additional Facts

¶ 14 After deliberations, the jury returned guilty verdicts on all counts. The trial court polled the jury at defense counsel's request, asking each juror "if these are indeed your verdicts." Juror 8 responded, "No"; and when the court asked, "These are not your verdicts," Juror 8 said, "Nope." The court ceased polling and provided the following instruction:

Well, members of the jury, I'm going to send you back for continuing deliberations. It is a requirement of the law that all verdicts be unanimous. And it sounds like ... we have not reached unanimity. So it's about 4:35. I'll have you head back into the jury deliberation room. Again, I plan to let you go at 4:50. So we'll come back and get you at 4:50. All right.

¶ 15 Defense counsel moved for a mistrial. He was concerned about potential juror misconduct or the "jury bullying with Juror 8" to return a guilty verdict. The prosecutor argued that these concerns were "purely speculative." In the alternative, defense counsel asked the trial court to individually question Juror 8 about the nonunanimous verdict. The court denied the motion for a mistrial and denied the request to question Juror 8. It reasoned that there was

no evidence on which to base a conclusion that the other jurors are back there right now improperly coercing Juror Number 8 to reach a guilty verdict. As I mentioned earlier when I asked Number 8 if these were her verdicts, she very assertively ... said no, these are not her verdicts. So at least by appearances, she [does] not present as somebody [who] was meek and to be bullied into reaching a decision. I'll add that she said these are not her verdicts almost with a tone of defiance.

And the court found it lacked the authority to question Juror 8 about deliberations under CRE 606(b).

¶ 16 Later, and immediately following the court's evening recess instruction, Juror 8 stated, "[T]hey cleared it up for me what's I was confused about, so now I agree." The prosecutor asked the court to allow the jury to deliberate a "bit longer ... because it sounds like they're close." The court declined the request and again instructed the jury to return the next day.

¶ 17 The following day, the jury deliberated two more hours before returning new verdict forms finding Pellegrin guilty of stalking, posting a private image for harassment (Craigslist), and harassment, and acquitting him of posting a private image for harassment (Facebook). Subsequent polling confirmed a unanimous verdict.

B. Standard of Review and Applicable Law

¶ 18 We review a trial court's denial of a motion for a mistrial for an abuse of discretion. People v. Johnson , 2017 COA 11, ¶ 39, 446 P.3d 826. A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Id. Under this standard, the test is not "whether we would have reached a different result but, rather, whether the trial court's decision fell within a range of reasonable options." People v. Salazar , 2012 CO 20, ¶ 32, 272 P.3d 1067 (Bender, C.J., dissenting) (quoting E-470 Pub. Highway Auth. v. Revenig , 140 P.3d 227, 230-31 (Colo. App. 2006) ).

¶ 19 A trial court is responsible for ensuring that a conviction is the result of a unanimous verdict. People v. Rivera , 56 P.3d 1155, 1160-61 (Colo. App. 2002) ; see also § 16-10-108, C.R.S. 2020; Crim. P. 23(a)(8), 31(a)(3). "Unanimity requires a deliberative process...