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Colorado Supreme Court Opinions
January 17, 2006

No. 05SC17. People v. Cross
CRS § 18-91-11(4)(b)(III)—Harassment by Stalking/Serious Emotional Distress—Mens Rea—Elements of a Crime—Legislative Declaration of Policy—Legislative Intent—Objective Standard—Jury Instructions.

A jury convicted Cross of harassment by stalking/serious emotional distress in violation of CRS § 18-91-11(4)(b)(III). The Court of Appeals overturned the conviction because the trial court improperly admitted evidence of Cross’s prior stalking conviction as an element of the newly charged offense. The Court of Appeals also ruled that the trial court had delivered an improper instruction to the jury. It held that, to violate § 18-91-11(4)(b)(III), a defendant must be aware that his or her conduct is practically certain to cause a reasonable person to suffer serious motional distress.

On review, the Supreme Court concludes that the "knowingly" mens rea in § 18-91-11(4)(b)(III) does not apply to the statutory phrase "in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person...to suffer serious emotional distress." Instead, a clear intent appears in the statute to limit the application of "knowingly" to the acts of a defendant who "[r]epeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with" the victim or another enumerated person.

The Court concludes that the legislature provided for an objective test by which to gauge whether a defendant’s acts would cause a reasonable person to suffer serious emotional distress, and further provided that the victim actually must suffer serious emotional distress. In doing so, the legislature recognized that the stalker in pursuing the victim may be oblivious to objective reality; he or she may not be aware that the repeated acts engaged in would cause a reasonable person to suffer severe emotional distress. In this case, Cross placed his victim under surveillance, approached her, and contacted her in a manner that would cause a reasonable person to suffer serious emotional distress, and she suffered such distress.

These acts are not harmless, are within the statute’s proscription, and are not protected by the First Amendment. The Court holds that the statute is not unconstitutionally vague or overbroad because a reasonable person can understand what conduct is proscribed and the statute does not criminalize harmless acts or those protected by the First Amendment. Accordingly, on this point the Court reverses the judgment of the Court of Appeals on the issue of the correct jury instruction for the crime of harassment by stalking/serious emotional distress.

Colorado Supreme Court Opinions

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