The People of the State of Colorado, Plaintiff-Appellee, v. Trevor A. Pellegrin, Defendant-Appellant.
Court of Appeals No. 18CA1487
COLORADO COURT OF APPEALS
September 2, 2021
2021COA118
Opinion by JUDGE FREYRE; Yun and Graham*, JJ., concur
El Paso County District Court No. 17CR4220; Honorable William B. Bain, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
September 2, 2021
2021COA118
No. 18CA1847, People v. Pellegrin — Crimes — Posting a Private Image for Harassment — Stalking — Harassment; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses
In this “revenge porn” case, a division of the court of appeals decides two novel issues. First, does the term “breast of a female,” in
Second, is harassment,
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FREYRE
Yun and Graham*, JJ., concur
Announced September 2, 2021
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for
*Sitting by assignment of the Chief Justice under provisions of
¶ 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,
¶ 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,
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
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
¶ 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. 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 (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
¶ 20 Under Crim. P. 31(d),
[w]hen a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the court‘s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
¶ 21 The right to a jury poll, however, is not absolute. Phillips, 91 P.3d at 479. The manner of conducting a jury poll is within the trial court‘s discretion. Id.
C. Analysis
¶ 22 Relying on several factors considered in Harris v. United States, 622 A.2d 697, 705 (D.C. 1993), Pellegrin argues that after Juror 8 identified herself as a dissenting juror, the court should have inquired into whether the jury was deadlocked and provided further instructions to alleviate any coercive effect. However, we decline to adopt the Harris factors as the exclusive means of analyzing this issue and, instead, apply a general abuse of discretion standard consistent with our case law and the jury poll rule. See People v. Barnard, 12 P.3d 290, 295 (Colo. App. 2000) (“We review the court‘s consideration of a juror‘s doubt as to his or her verdict under an abuse of discretion standard.“); see also Phillips, 91 P.3d at 479. Under this standard, we conclude, for three reasons, that the trial court acted within its discretion by declining to declare a mistrial after instructing the jury to continue deliberations.
¶ 23 First, the trial court‘s instruction to continue deliberations was not coercive. The court did not set a deadline to return verdicts. Nor did it tell the jury that unless its deliberations resulted in a unanimous verdict, a mistrial would be declared. Cf. Allen v. People, 660 P.2d 896, 898 (Colo. 1983) (“[T]he court‘s arbitrary fifteen minute deadline [to return a verdict or a have a mistrial declared] may have prevented the jury from reaching a well considered verdict.“). It told the jury to continue deliberations until 4:50 p.m., the time at which the court had previously instructed the jury it would be excused. And, when the jury returned, the court declined to take a verdict, and instead told the jurors to “take a break from the case” for the evening and resume deliberations the following
¶ 24 Second, though Pellegrin relies on People v. Black, 2020 COA 136, for the proposition that the trial court should have inquired into whether the jury was deadlocked, that reliance is misplaced. In Black, a deliberating juror asked the court, “What happens if we can‘t come to a unanimous decision on only one charge?” Id. at ¶ 8. The court instructed the jury to continue deliberations without first determining whether it was deadlocked and, if so, how intractably. Id. The division found error in the trial court‘s failure to inquire about whether the jury was deadlocked and thus, it could not determine whether the court‘s instruction to continue deliberating was coercive. Id. at ¶¶ 24, 31.
¶ 25 In contrast, the court here learned only that the verdict was not unanimous, not that the jury was deadlocked. Cf. People v. Martinez, 987 P.2d 884, 888 (Colo. App. 1999) (holding that if a juror gives an equivocal response to a jury poll, a trial court may make additional inquiries to determine if the verdict is unanimous). Without some indication that the jury could not reach a unanimous verdict, any extensive questioning about the deliberative process or about why the verdict was not unanimous would have been improper. Gibbons v. People, 2014 CO 67, ¶ 32 (“Absent some affirmative indication from the jury that it harbors this concern, the trial court should not interfere with the jury‘s deliberative process.“); see also People v. Juarez, 271 P.3d 537, 544 (Colo. App. 2011); Martinez, 987 P.2d at 888.
¶ 26 Third, the trial court did not abuse its discretion by finding, based on her response to the poll and her demeanor, that Juror 8 was unlikely to be bullied into a guilty verdict. See Barnard, 12 P.3d at 295. And Pellegrin‘s counsel presented no evidence, beyond mere speculation, that the remaining jurors bullied Juror 8 into finding him guilty. Indeed, the jury returned a different and more favorable (to Pellegrin) verdict after further deliberations.
¶ 27 Accordingly, we discern no error.
III. Constitutionality of Stalking Statute
¶ 28 Pellegrin next contends that the stalking statute,
A. Standard of Review and Applicable Law
¶ 29 We review the constitutionality of a statute de novo, but presume that statute is constitutional. People v. Folsom, 2017 COA 146M, ¶ 70.
¶ 30
(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.
¶ 31 In Cross, our supreme court concluded that a substantially similar stalking statute is not unconstitutionally overbroad. The court noted that the statute criminalizes only conduct that involves a “severe intrusion upon the victim‘s personal privacy and autonomy, with an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.” Cross, 127 P.3d at 79 (quoting former
B. Analysis
¶ 32 We reject Pellegrin‘s contention that the stalking statute is unconstitutionally overbroad and reject his reliance on the Illinois Supreme Court‘s decision in People v. Relerford, 104 N.E.3d 341 (Ill. 2017). In doing so, we follow our supreme court‘s desicion in Cross, 127 P.3d at 78-79, as we must. People v. Richardson, 181 P.3d 340, 343-45 (Colo. App. 2007); see also People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008) (rejecting defendant‘s argument that supreme court precedent was wrongly decided because we are bound by Colorado Supreme Court decisions).
¶ 33 We also reject Pellegrin‘s contention that Reed v. Town of Gilbert, 576 U.S. 155 (2015), compels a different result. In Reed, the Supreme Court held that the Town of Gilbert‘s exemption of categories of signs including “ideological” and “political” signs from its prohibition on the display of outdoor signs without a permit was unconstitutional. Id. at 159-60. The Court reasoned that content-based laws — those that target speech based on the “topic discussed or the idea or message expressed” — are presumptively unconstitutional. Id. at 163. Content-based laws include laws that appear facially neutral but cannot be justified without reference to the content of the regulated speech or were adopted because of a disagreement with the message that the speech conveys. Id. at 163-64. The Court went on to conclude that the laws in that case imposed content-based restrictions because the laws applied more stringent restrictions on various types of signs, which compelled an analysis of the content of the signs. Id. at 159, 171-72.
¶ 34 Colorado‘s stalking statute, on the other hand, targets repeated conduct that would “cause a reasonable person to suffer serious emotional distress.”
IV. Sufficiency of the Evidence
¶ 35 Pellegrin next contends that the photos posted in the Craigslist ads insufficiently established the element of “private intimate parts” required for his conviction of posting a private image for harassment. He asserts that the photo showing the side of the victim‘s exposed breast is not a photo depicting the “breast of a female” under the definition of “private intimate parts” because the “entire breast” was not displayed. See
A. Standard of Review and Applicable Law
¶ 36 In assessing the sufficiency of the evidence to support a conviction, we review the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, was substantial and sufficient to support a conclusion by a reasonable mind that the defendant was
¶ 37 We also review questions of statutory interpretation de novo. Id. When construing a statute, our primary task is to ascertain and give effect to the General Assembly‘s intent. Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007). We begin with the statute‘s plain language. People v. Huckabay, 2020 CO 42, ¶ 13. “If the language is clear and unambiguous on its face, we simply apply it as written and will not resort to other interpretive aids.” Id. We “respect the legislature‘s choice of language,” and we “do not add words to the statute or subtract words from it.” Turbyne, 151 P.3d at 567-68.
¶ 38 If, however, the language is susceptible of more than one reasonable meaning, it is ambiguous. Marquez v. People, 2013 CO 58, ¶ 7. “In that event, a number of intrinsic and extrinsic aids to construction have [been] developed to assist in resolving the ambiguity and determining which of the various reasonable interpretations is the appropriate one.” Id.
¶ 39 As relevant here, a person who is eighteen years or older commits the offense of posting a private image for harassment if
he or she posts or distributes through the use of social media or any website any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older or an image displaying sexual acts of an identified or identifiable person:
(I) With the intent to harass, intimidate, or coerce the depicted person;
(II)(A) Without the depicted person‘s consent; or
(B) When the actor knew or should have known that the depicted person had a reasonable expectation that the image would remain private; and
(III) The conduct results in serious emotional distress of the depicted person.
B. Breast of a Female
¶ 40 The General Assembly did not define “breast of a female” when defining “private intimate parts.” Pellegrin argues that the term “breast of a female” is unambiguous and plainly means the “entire breast.” He reasons that because the photo here depicted only the right side of the victim‘s exposed breast, not her entire breast or the nipple, insufficient evidence supports the jury‘s verdict. We are not convinced and conclude instead that the term “breast of a female” is susceptible of more than one reasonable interpretation (i.e., the entire female breast, any portion of the female breast from the top of the areola down, the female nipple, etc.) and is therefore ambiguous as applied to this case. Accordingly, we turn to interpretative aids to resolve the ambiguity.
¶ 41 In People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999), a division of this court considered whether a photo depicting a portion of a child‘s breast was sufficient to support a conviction of sexual exploitation of a child,
¶ 42 A person commits sexual exploitation of a child by knowingly causing a child to engage in the making of any “sexually exploitative material.”
¶ 43 Similarly, Pellegrin‘s argument emphasizes the term “breast of a female” in the definition of “private intimate parts” to the exclusion of the statute‘s purpose and the harm it was intended to address.
¶ 44 The General Assembly sought to protect victims of “revenge porn” by enacting the posting of a private image for harassment statute. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo. 2014). Testimony leading to the statute‘s enactment focused on the harm caused to victims by posting images displaying “private intimate parts” on social media or any website — including job loss, humiliation with family and friends, unwanted sexual requests and comments, stalking, threats by intimate partners and strangers, and even suicide — and the inadequate protections for them. See Hearings on H.B. 14-1378 before the H. Judiciary Comm., 69th Gen. Assemb., 2d Reg. Sess. (Apr. 24, 2014); Hearings on H.B. 14-1378 before the S. Judiciary Comm., 69th Gen. Assemb., 2d Reg. Sess. (Apr. 30, 2014); 2d Reading on H.B. 14-1378 before the S., 69th Gen. Assemb., 2d Reg. Sess. (May 2, 2014).
¶ 45 In 2018, the statute was amended in multiple ways, most notably to include the posting of “an image displaying sexual acts of an identified or identifiable person.” Ch. 192, sec. 1,
¶ 46 Pellegrin does not argue that a female victim somehow suffers less harm when only a portion of her breast is exposed, as opposed to the entire breast. Instead, he argues that the limited discussion about “private intimate parts” during the legislative hearings favors his argument that “breast of a female” is limited to the display of the entire breast. And he contends that if the General Assembly had intended to include any portion of the female breast within the definition, it could have done so. See, e.g.,
¶ 47 In our view, however, the General Assembly did not communicate a clear intent to limit the term “breast of a female” to the entire female breast. Rather, the legislative history reveals a clear purpose to protect victims from the harm caused by the posting of private intimate parts images online and to strengthen protections from those harms. It does not follow that the harm is avoided or even lessened by posting a photo of only a portion of an identifiable person‘s exposed breast. If the General Assembly had intended to limit the term “breast of a female” to the entire breast, it could have done so, and we may not add words to or subtract words from the statute. See Turbyne, 151 P.3d at 567.
¶ 48 Construing the statute as a whole, we conclude that the term “breast of a female” includes any display of an identifiable female‘s exposed breast. To conclude otherwise would frustrate the statute‘s purpose. See AviComm, Inc. v. Colo. Pub. Utils. Comm‘n, 955 P.2d 1023, 1031 (Colo. 1998) (“[T]he intention of the legislature will prevail over a literal interpretation of the statute that leads to an absurd result.“); State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“In any event, the ultimate goal is to determine and give effect to the intent of the General Assembly; in doing so, a reviewing court must follow the
C. Constitutionality
¶ 49 Pellegrin next contends that interpreting “breast of a female” to include any portion of the breast renders the statute unconstitutionally vague and overbroad on its face. We disagree.
¶ 50 Under the posting a private image for harassment statute,
¶ 51 The vagueness doctrine is rooted in principles of due process. People v. Shell, 148 P.3d 162, 172 (Colo. 2006). Due process requires that a law give fair warning of the prohibited conduct. Id. A law offends due process if “it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement.” Id. (quoting Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988)). Thus, a statute “is not void for vagueness if it fairly describes the conduct forbidden, and persons of common intelligence can readily understand its meaning and application.” Parrish, 758 P.2d at 1367. To prevail on a facial challenge for vagueness, the challenger must show that the statute is incomprehensible in all its applications. People v. McCoy, 2015 COA 76M, ¶ 65, aff‘d on other grounds, 2019 CO 44.1
¶ 52 Pellegrin argues that interpreting “breast of a female” to mean any portion of the female breast is unconstitutionally vague because it fails to give notice of how much of the breast must be depicted and what conduct the statute criminalizes. However, Pellegrin focuses on one portion of the statute without considering the other elements of the offense.
¶ 53 In the context of the statute as a whole, our interpretation of “breast of a female” is specific enough to provide a person of common intelligence with notice that posting an image of any portion of the exposed female breast online is prohibited if such person posts the image with the requisite intent and without the victim‘s consent, or with knowledge that the victim had a reasonable expectation that the image would remain private. Thus, Pellegrin has not established that the statute is incomprehensible in all of its applications. See Shell, 148 P.3d at 172.
¶ 54 Regarding overbreadth, a statute is not unconstitutionally overbroad simply because it could possibly be applied in some unconstitutional manner. People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999). “A statute is overbroad if it sweeps so comprehensively as to include within its proscriptions a substantial amount of constitutionally protected speech.” Id.
¶ 55 Pellegrin does not argue that the statute sweeps so comprehensively as to include a substantial amount of constitutionally protected speech. Indeed, the posting a private image for harassment statute requires proof of (1) an identifiable victim; (2) intent; (3) lack of consent (or knowledge that the victim had a reasonable expectation that the image would remain private); and (4) serious emotional distress of the victim. These elements, in addition to displaying the private intimate parts, narrow the statute‘s potential reach so as not to criminalize harmless behavior. See Cross, 127 P.3d at 78-79.
¶ 56 In this case, without the victim‘s consent, Pellegrin posted on Craigslist a private photo showing the side of the victim‘s exposed breast. The Craigslist ad invited strangers to contact the victim for a “good time” and included the victim‘s name, photos showing her face, her phone number, and
¶ 57 Viewing this evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence to convict Pellegrin of posting a private image for harassment on Craigslist. See People v. Harrison, 2020 CO 57, ¶ 32 (“Under Bennett‘s substantial evidence test, we inquire whether the evidence, ‘viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.‘” (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973))).
¶ 58 Accordingly, we discern no error.
V. Merger
¶ 59 Pellegrin next contends that harassment,
A. Standard of Review and Applicable Law
¶ 60 “Whether an offense is a lesser included offense of another requires statutory interpretation and therefore poses a legal question that we review de novo.” People v. Zweygardt, 2012 COA 119, ¶ 10. As well, we review de novo double jeopardy contentions. People v. Frye, 2014 COA 141, ¶ 30. But because this issue was not preserved, we review it for plain error. Reyna-Abarca v. People, 2017 CO 15, ¶ 47.
¶ 61 As set forth above in Part IV, we review questions of statutory interpretation de novo, and when construing a statute, our primary task is to ascertain and give effect to the General Assembly‘s intent. See Turbyne, 151 P.3d at 567.
¶ 62 The Double Jeopardy Clauses of the United States and Colorado Constitutions protect criminal defendants from multiple punishments for the same offense.
¶ 63 Under
¶ 64
¶ 65 As relevant here, a person commits harassment if,
with intent to harass, annoy, or alarm another person, he or she:
. . . .
(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene.
¶ 66 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.
B. Analysis
¶ 67 Pellegrin does not argue that harassment is a lesser included offense of stalking under the strict elements test set forth in
¶ 68 The parties agree that harassment differs from stalking both in the degree of injury or risk of injury and the kind of culpability required. Indeed, harassment requires proof of intentional conduct while stalking requires proof of knowing conduct. As well, harassment is accomplished “in a manner intended to harass or threaten bodily injury,”
The People, on the other hand, argue that “or” is limited by the word only and that only one distinction between the two offenses may exist for them to merge — either the mens rea or the risk of harm. They reason that because the statutes reflect two distinctions, they do not satisfy the single distinction test and cannot merge under
¶ 69 First, “when the word ‘or’ is used in a statute, it is presumed to be used in the disjunctive sense, unless legislative intent is clearly to the contrary.” Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993); see also People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009) (“Use of the word ‘or’ is ordinarily ‘assumed to demarcate different categories.‘” (quoting Garcia v. United States, 469 U.S. 70, 73 (1984))); 1A Norman J. Singer & Shambie Singer, Sutherland Statutory Construction § 21:14, Westlaw (7th ed. database updated Nov. 2020) (“The literal meaning of [‘and’ and ‘or‘] should be followed unless it renders the statute inoperable or the meaning becomes questionable.“). A reviewing court may substitute the word “or” for “and” to avoid an absurd or unreasonable result. See Smith v. Colo. Dep‘t of Hum. Servs., 916 P.2d 1199, 1201 (Colo. App. 1996).
¶ 70 The word “only” is restrictive and is synonymous with exclusively. Webster‘s
¶ 71 Second, our supreme court‘s holdings in Leske and Raymer further counsel that the word “or” cannot be substituted with “and/or.” In Raymer, the court held that aggravated robbery is a lesser included offense of felony murder (based on robbery) by concluding, under
¶ 72 Similarly, in Leske, the supreme court held that sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust, under
¶ 73 As well, most of the divisions of this court that have applied subsection (5)(c) have applied a single distinction test. See People v. Oliver, 2020 COA 97, ¶ 63 (holding that second degree possession of contraband is a lesser included offense of first degree possession of contraband under
¶ 74 Nevertheless, even if we accepted Pellegrin‘s interpretation, the outcome would not change. Not only do stalking and harrassment differ in the degree of injury or risk of injury and the degree of culpability, but they also differ in the class of victims to which they apply. The class of victims under the stalking statute includes not only another person but “a member of that person‘s immediate family[] or someone with whom that person has or has had a continuing relationship.”
¶ 75 Accordingly, we conclude harassment is not a lesser included offense of stalking under
VI. Domestic Violence Finding
¶ 76 Pellegrin last contends that under Apprendi v. New Jersey, 530 U.S. 466 (2000), he had a Sixth Amendment right to have a jury, not the trial court, determine whether the crime for which he was convicted included an act of domestic violence. We disagree and conclude a domestic violence finding under
A. Standard of Review and Applicable Law
¶ 77 Trial courts have broad discretion over sentencing decisions. Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008). “However, we review constitutional challenges to sentencing determinations de novo.” People v. Jaso, 2014 COA 131, ¶ 8. Where an error of constitutional dimension occurs, “the sentence must be vacated unless the error was harmless beyond a reasonable doubt.” Id. at ¶ 9 (quoting Villanueva, 199 P.3d at 1231).
¶ 78 The
¶ 79
¶ 80 In Heisler, ¶¶ 44-45, a division of this court held that
B. Analysis
¶ 81 We find the reasoning in Heisler persuasive and apply it here. In doing so, we reject Pellegrin‘s contention that Heisler was wrongly decided. Specifically, he argues the division in Heisler applied the seven-factor test in Mendoza-Martinez without first determining whether a domestic violence finding is a criminal or civil punishment. See People in Interest of T.B., 2019 COA 89, ¶ 21 (“To decide whether a statute creates a punishment, a court must first ‘ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.‘“) (citations omitted), aff‘d in part and rev‘d in part, 2021 CO 59. The Supreme Court, however, established the seven-factor test to assist in determining the punitive nature of a sanction. Mendoza-Martinez, 372 U.S. at 168; see also United States v. Ward, 448 U.S. 242, 249 (1980) (noting that the seven factors in Mendoza-Martinez are helpful considerations in determining whether Congress provided for sanctions so punitive as to transform a civil remedy into a criminal penalty); People in Interest of T.B., ¶¶ 31-47 (applying the Mendoza-Martinez factors in its analysis of whether a statute created a punishment). And we agree that the Mendoza-Martinez factors were the appropriate analytical framework to determine whether a domestic violence finding is a penalty.
¶ 82 In addition, we reject Pellegrin‘s reliance on People v. Jaso, 2014 COA 131. In Jaso, the trial court‘s domestic violence finding was used not only to mandate domestic violence treatment, but also as part of a larger habitual domestic violence offender determination. Id. at ¶ 1. Because the prosecution sought to increase the defendant‘s misdemeanor to a felony under the habitual domestic violence statute, thereby increasing the penalty for the crime, the defendant was entitled to have the jury make the domestic violence finding. Id. at ¶ 23.
¶ 83 In contrast, the domestic violence finding here did not increase the maximum or minimum punishment for the crime. Instead, the finding added a condition to Pellegrin‘s sentence — a domestic violence evaluation and any recommended treatment. See
¶ 84 Still, Pellegrin maintains that the court‘s domestic violence finding is a penalty because it restricted his access to firearms pursuant to
VII. Conclusion
¶ 85 The judgment is affirmed.
JUDGE YUN and JUDGE GRAHAM concur.