People v. OrndorffPeople v. Orndorff
Megan A. Ring, Colorado State Public Defender, Heather Wong, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
I. Background
¶ 2 The victim, K.W., a bartender at a pizza restaurant, met Orndorff a few times while she was working. One day when K.W. was opening the restaurant, Orndorff confronted her, asking her “very aggressively” what was going on and whether she got his messages. She replied that she did not recall giving Orndorff her phone number. He continued to speak to her in an “intimidating” way, leaning over the bar while she was trying to open the restaurant.
¶ 3 Orndorff mentioned the messages were on Facebook, so she went into the bathroom and went through her message requests on Facebook. When she located Orndorff’s messages, she noted that they were “lewd” and asked her manager to ask Orndorff to leave while she hid in the kitchen until he was gone.
¶ 4 After her shift, K.W. went to the police station. She and an officer opened the messages on a computer and went through them. There were over 150 messages, which included twelve references to sexual acts. There were also eight messages where Orndorff said he
¶ 5 K.W. went home and continued to review the messages. The next day, she returned to the police station, stated that she was concerned for her well-being, and requested charges against Orndorff.
¶ 6 The People charged Orndorff with one count of stalking (serious emotional distress).
¶ 7 A jury convicted Orndorff as charged. He was sentenced to eighteen months in the custody of the Department of Corrections, with two years of mandatory parole.
¶ 8 Orndorff argues that the district court erred when it (A) rejected his facial and as-applied constitutional challenges to the stalking statute and (B) admitted evidence of a series of Facebook messages.
A. Constitutionality of the Stalking Statute
¶ 9 Orndorff contends that the stalking statute,
1. Standard of Review and Applicable Law
¶ 10 We review de novo facial and as-applied challenges to the constitutionality of a statute. People v. Folsom, 2017 COA 146M, ¶ 70; People v. Perez-Rodriguez, 2017 COA 77, ¶ 8. Statutes are presumed to be constitutional. Folsom, ¶ 70. An as-applied challenge alleges that a statute is unconstitutional as to the specific circumstances under which a defendant acted. People v. Nozolino, 2014 COA 95, ¶ 19. The party attacking the constitutionality of a
¶ 11
(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:
. . . .
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
¶ 12 In People v. Cross, 127 P.3d 71 (Colo. 2006), the supreme court upheld the facial constitutionality of a stalking statute substantially similar to the one in this case. The court noted that the statute criminalized only conduct that involves a “severe intrusion upon the victim’s personal privacy and autonomy, with an
¶ 13 Moreover, because the statute criminalized only acts of a particular nature (i.e., acts involving inappropriate intensity, persistence, and possessiveness, severely intruding upon a victim’s personal privacy and autonomy) and having a particular effect (i.e., objectively and subjectively causing serious emotional distress), the court held that the sweep of the statute would not include a substantial amount of constitutionally protected speech. Id.
2. Additional Facts
¶ 14 Before trial, Orndorff filed a motion to dismiss the case for infringing on his constitutional rights to due process and free speech. Orndorff argued that the statute was unconstitutional on its face and as applied because his speech was constitutionally protected, as it was not in a class of unprotected speech, such as obscenity. The People asserted that the statements were obscene and, therefore, were not protected speech, and included thirteen of
¶ 15 Orndorff again raised the
3. Discussion
a. Facial Challenge
¶ 16 At the outset, we reject Orndorff’s contention that the stalking statute is unconstitutional on its face, because it is not overbroad or vague. In so doing, we adopt the reasoning in Cross. Id. at 78-79; see also Folsom, ¶ 71; People v. Beauvais, 2014 COA 143, ¶ 24, rev’d, 2017 CO 34; People v. Richardson, 181 P.3d 340, 343-45 (Colo. App. 2007).
¶ 17 We reject Orndorff’s contention, moreover, that Reed v. Town of Gilbert, 576 U.S. 155 (2015), compels a different result. In that case, the Supreme Court determined that the Town of Gilbert’s exemption of categories of signs including “ideological” and “political” signs from their prohibition on display of signs without a
¶ 18 Colorado’s stalking statute, on the other hand, targets all repeated conduct that would “cause a reasonable person to suffer serious emotional distress.”
b. As-Applied Challenge
¶ 19 Orndorff also maintains that the stalking statute was unconstitutionally applied in his case because the messages he sent to K.W. were protected speech under the
¶ 20 “[T]he right of free speech is not absolute at all times and under all circumstances.” People v. Smith, 862 P.2d 939, 941 (Colo. 1993). While the right to free speech guarantees a powerful right to express oneself, it does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress. People v. Borrelli, 91 Cal. Rptr. 2d 851, 860 (Ct. App. 2000); see State v. Cooney, 894 P.2d 303, 307 (Mont. 1995) (rejecting defense argument that the stalking statute could not constitutionally be applied to a defendant who purported only to
¶ 21 Here, the People presented evidence of over 150 private Facebook messages that Orndorff sent K.W., and testimony that Orndorff told the detective he may have sent over 700. K.W. did not respond to any of them. We recognize that K.W. saw all of the messages at one time. However, “nothing in the statute indicates that [the defendant] should be relieved of criminal liability simply because the [victim] did not retrieve each of the [messages] the moment they were delivered. . . . [T]here is no additional statutory requirement that the repeated communications must occur over a specific time period.” People v. Chase, 2013 COA 27, ¶ 55.
¶ 22 The unwanted volume, intensity, and effect of these messages are the type that the stalking statute was meant to — and can constitutionally — protect against.
A stalker will often maintain strong, unshakable, and irrational emotional feelings for his or her victim, and may likewise believe that the victim either returns these feelings of affection or will do so if the stalker is persistent enough. Further, the stalker often maintains this belief, despite a trivial or
nonexistent basis for it and despite rejection, lack of reciprocation, efforts to restrict or avoid the stalker, and other facts that conflict with this belief. . . . Because stalking involves highly inappropriate intensity, persistence, and possessiveness, it entails great unpredictability and creates great stress and fear for the victim.
Cross, 127 P.3d at 75 (quoting
¶ 23 Indeed, here, the evidence established that Orndorff suggested in his messages that he surveilled K.W., approached her, and repeatedly contacted her. K.W. testified that she believed she was in physical danger, as the messages and contact from Orndorff made her afraid to walk, go grocery shopping, or walk her dogs alone. She further testified that the messages affected her ability to sleep, her capability to do her job, and her relationship with her boyfriend, and that she had been in nine months of therapy as a result of the messages.
¶ 24 Orndorff contends that the district court erred when it determined that some of the messages were obscene. But, even if we assume, without deciding, that the district court erred in its decision, Orndorff’s acts — sending over 150 private messages and
¶ 25 Therefore, we conclude that the district court did not err when it denied Orndorff’s pre-trial motion and motion for judgment of acquittal.
B. Admissibility of Facebook Message Evidence
¶ 26 Orndorff next contends that the district court improperly admitted People’s Exhibit 1, a printout of Facebook messages that Orndorff sent K.W. Specifically, he argues that the printout was not properly authenticated. Again, we disagree.
1. Standard of Review and Applicable Law
¶ 27 We review the district court’s evidentiary rulings, including rulings on authentication, for an abuse of discretion. People v. Bernard, 2013 COA 79, ¶ 8. A court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or based on
¶ 28 “The burden to authenticate ‘is not high — only a prima facie showing is required,’” and “a ‘district court’s role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.’” People v. Glover, 2015 COA 16, ¶ 13 (quoting United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014)); see also
¶ 29 Proper authentication of Facebook records requires evidence sufficient to support findings that (1) the records came from Facebook and (2) the records were authored by the person in question. Glover, ¶ 23.
2. Additional Facts
¶ 30 At trial, the officer who met K.W. at the police station testified that they went into an office to view the Facebook messages. The officer testified that K.W. went to Facebook.com, entered her
¶ 31 Orndorff objected when the People moved to admit the document as Exhibit 1, arguing that the People failed to properly lay the foundation or establish that the messages were from Facebook and that the sender was Orndorff. The district court overruled Orndorff’s objections, stating that the officer’s testimony was sufficient to lay the foundation and establish a prima facie case that the messages were from Facebook and that Orndorff was the sender.
3. Discussion
¶ 32 As to the first authentication prong, the officer and K.W. both testified that K.W. opened her Facebook account in front of the officer, opened Facebook Messenger, and went through the
¶ 33 Nevertheless, Orndorff argues that the People did not provide “official records from Facebook” or “an affidavit from a Facebook representative certifying the records as being associated with a particular account, created at a certain time, or saved through Facebook’s system.” However, there is no requirement that a Facebook representative authenticate Facebook conversations or that electronic evidence indicate its source. Records can be authenticated through a witness with knowledge testifying “that a matter is what it is claimed to be” under
¶ 34 Because the evidence sufficiently supported a prima facie finding that the messages came from Facebook, the district court
¶ 35 As to the second prong, the officer testified that he watched K.W. open Facebook and the messages Orndorff sent to her, and that Orndorff’s photo and unique name confirmed the officer’s belief that Orndorff was the sender. He further testified that Orndorff admitted sending messages to K.W. through Facebook. In light of the testimony from the officer and K.W., a reasonable jury could conclude that the evidence was what it purported to be, i.e., an electronic communication between Orndorff and another individual. Glover, ¶¶ 13, 32-33 (determining that Facebook evidence was sufficiently authenticated where the proponent showed that the account was registered to a name that matched the defendant’s, the profile included photos of the defendant, and there was testimony that the defendant spoke about the crime on Facebook and in person). Any doubt as to whether Orndorff actually sent the
¶ 36 Therefore, we conclude the district court did not err when it found that Exhibit 1 was properly authenticated.
III. Conclusion
¶ 37 The judgment of conviction is affirmed.
JUDGE TOW and JUDGE PAWAR concur.