2021 COA 118
Colo. Ct. App.2021Background
- Pellegrin and the victim were formerly engaged; during the relationship he photographed her in various stages of undress. After the breakup, Pellegrin sent threatening texts and nude photos and then posted the victim’s nudes to Facebook and Craigslist.
- Craigslist ads included photos (one showing the side of the victim’s exposed breast), the victim’s name, phone number, and invitations for sexual encounters; the victim received many obscene responses, quit her job, and moved.
- Pellegrin was arrested, admitted posting some photos, and was charged with stalking, two counts of posting a private image for harassment, and harassment.
- A jury convicted him of stalking, posting a private image for harassment (Craigslist), and harassment; he was acquitted on the Facebook posting count.
- On appeal, Pellegrin challenged (1) the statutory meaning of “breast of a female” in the posting statute and related sufficiency/vagueness issues, (2) whether harassment is a lesser included offense of stalking, (3) the trial court’s handling of a nonunanimous jury poll, and (4) the Sixth Amendment implications of a court-made domestic-violence finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “breast of a female” in § 18-7-107 | The statute protects images showing any portion of a female breast; the posting statute’s purpose supports a broad reading | The phrase unambiguously requires the entire breast (e.g., full breast or nipple); a narrower meaning makes evidence insufficient | Ambiguous; construed to include any portion of an identifiable female’s exposed breast; statute neither vague nor overbroad as applied; evidence was sufficient (Craigslist photo adequate) |
| Whether harassment (§ 18-9-111(1)(e)) is a lesser included offense of stalking (§ 18-3-602(1)(c)) under § 18-1-408(5)(c) | “Or” in subsection (5)(c) is exclusive and only a single distinction may separate offenses; here harassment and stalking differ in more than one respect so they do not merge | “Or” should be read inclusively (and/or); harassment differs only by degree and mens rea so it should merge into stalking | Harassment is not a lesser included offense of stalking under § 18-1-408(5)(c); the offenses differ in culpability, degree of harm, and class of victims |
| Trial court’s handling of a juror’s dissent revealed during poll (mistrial claim) | Court’s instruction to continue deliberations and not interrogate jurors was proper; no evidence of coercion or bullying | Court should have inquired further or declared mistrial because Juror 8 initially dissented; polling procedure was coercive | No abuse of discretion; instruction to continue deliberations was not coercive, further inquiry would have improperly intruded on deliberations, and unanimous verdicts were later confirmed |
| Sixth Amendment challenge to court’s domestic-violence finding (Apprendi) | Domestic-violence finding is non-punitive (rehabilitative/administrative) and does not increase the sentence maximum/minimum, so no jury finding required | A domestic-violence finding carries collateral consequences (firearm restriction, future enhancements) and implicates Apprendi rights | Domestic-violence finding is not a punishment for Apprendi purposes; court may make the finding and impose mandated treatment without a jury determination |
Key Cases Cited
- People v. Cross, 127 P.3d 71 (Colo. 2006) (upholding Colorado stalking statute against overbreadth challenge)
- People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999) (statutory interpretation: partial display of breast can satisfy child-exploitation "erotic nudity" element)
- People v. Leske, 957 P.2d 1030 (Colo. 1998) (explaining limits of § 18-1-408(5)(c) when offenses differ in more than the single distinctions permitted)
- People v. Raymer, 662 P.2d 1066 (Colo. 1983) (applying § 18-1-408(5)(c) where aggravated robbery differed from felony murder only by degree of injury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase statutory maximum must be found by a jury)
- Allen v. People, 660 P.2d 896 (Colo. 1983) (limit on coercive time-pressure instructions to juries)