2025 COA 15
Colo. Ct. App.2025Background:
- Defendant Daniel Corey Morris was charged with stalking under Colorado’s section 18-3-602(1)(c) after persistently contacting and approaching his former intimate partner despite her requests to cease all contact.
- The prosecution alleged Morris engaged in repeated unwanted in-person contact, persistent knocking, banging, and attempts to speak, but did not make overt threats.
- The trial court, concerned about First Amendment implications per the Supreme Court’s decision in Counterman v. Colorado, modified the jury instructions to exclude communications and later granted Morris a partial acquittal on the "contact" portion of the charge.
- The jury was only allowed to consider whether Morris’s physical acts of approaching the victim constituted stalking; Morris was acquitted by the jury on that basis.
- The People (state) appealed the partial acquittal, arguing that the First Amendment analysis in Counterman should not have applied to Morris’s actions, as they were not based on the content of speech.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counterman’s First Amendment recklessness standard applies to stalking prosecutions based on actions, not threats or speech. | Counterman only applies to speech-based stalking; physical acts do not implicate the First Amendment. | Knocking and statements like "Will you talk to me?" are protected speech; Counterman’s recklessness standard should apply. | Counterman’s standard does not apply to prosecutions based on actions (approaching/contact), only to speech-based stalking. |
| Whether the court erred by requiring the prosecution to prove recklessness for the noncommunicative contacts. | Requiring recklessness not necessary where stalking is based on conduct, not protected expression. | Even conduct that includes speech should be evaluated under Counterman for potential First Amendment protection. | The trial court erred; recklessness is not required for non-speech-based stalking conduct. |
Key Cases Cited
- Counterman v. Colorado, 600 U.S. 66 (Supreme Court required subjective recklessness standard for threats in stalking prosecutions where conviction is premised on the content of speech)
- Texas v. Johnson, 491 U.S. 397 (flag burning is protected expressive conduct)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (student expressive conduct—black armbands—to protest war is protected speech)
- Brown v. Louisiana, 383 U.S. 131 (sit-in protests as expressive conduct protected by First and Fourteenth Amendments)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (the First Amendment does not protect conduct simply because it involves language)