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Colorado Criminal Law – A Colorado Case Defining the Stalking Law in Colorado

A recent case in Colorado helps us in understanding the complex crime of stalking – a crime that is often misunderstood and confusing to the average person.

In the case of People of the State of Colorado v. Demetrius Herron, the defendant, Demetrius Herron, appealed from a jury verdict finding him guilty of two counts of stalking and two counts of misdemeanor harassment.

Background of the Case:

In February 2006, defendant approached Ms. R while she was walking on a treadmill in her apartment complex’s exercise room. Defendant did not live in the apartment complex. They spoke for a short time, but Ms. R found defendant’s questions to be increasingly personal, and told him she did not want to talk any longer. According to her testimony, defendant became angry, approached within arm’s length of her, and asked whether she had an issue with his race. Defendant and Ms. R were of different races.

Feeling threatened, Ms. R removed a pair of scissors from her pocket. Defendant backed away, saying: “What do you think, I am going to rape you?” Then, he told her he had seen her leaving for church the previous Sunday morning, accurately described the shirt she had been wearing, and left the room.

On May 3, Ms. R returned home from work around 1 a.m. Taking the stairs to her third floor apartment, she encountered defendant on the second floor landing. After she passed him, he followed her up the stairs, saying, “Hello [Ms. R]. It’s good to see you again.” Ms. R told defendant she would scream if he did not leave her alone.

Without answering, defendant walked past her and around a corner in the hallway. Ms. R could see his elbow protruding around the corner, however. Concerned that he was waiting to see which apartment she entered, she asked, “Do I need to call the police?” She saw his elbow withdraw.

Based on this evidence, a jury found defendant guilty of credible threat stalking, former ¡ì 18-9-111(4)(b)(I) (now codified at ¡ì 18-3-602(1)(a), C.R.S. 2010); emotional distress stalking, former ¡ì 18-9-111(4)(b)(III) (now codified at ¡ì 18-3-602(1)(c), C.R.S. 2010); and two counts of misdemeanor harassment, ¡ì 18-9-111(1)(c), C.R.S. 2010.

The Colorado Crime of Stalking:

A person commits stalking if directly, or indirectly through another person, such person knowingly:

(I) Makes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person…;

(III) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person… in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person… to suffer serious emotional distress. ¡ì 18-9-111(4)(b)(I), (III).

Stalking Is a Continuous Course of Conduct

The plain words of the statute provides that the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance. The court here found that the defendant’s course of conduct directed at Ms. R amounted to a single crime. The statute does not contain any specific authorization for multiple punishments for each act of stalking.

Furthermore, the statute requires that the acts constituting stalking, namely, following, approaching, contacting, or placing another under surveillance, see ¡ì 18-9-111(4)(b)(I), (III), must be performed “repeatedly.” Consequently, per victim, stalking can occur only when there is conduct comprising two or more occurrences of the specified acts.

Thus, for defendant to be convicted of stalking, he had to have followed, approached, contacted, or surveilled Ms. R on at least two occasions.

To be convicted of a second stalking offense, he would have had to so act, in a separate transaction that is factually distinct from the first, on at least two more occasions. Courts look at such factors such as lapse of time between incidents, the location of the incidents, any intervening events, and the defendant’s intent as evidenced by his actions and statements, to determine whether incidents were sufficiently distinct to constitute a separate transaction.

The court here, under these facts, found that the evidence was not sufficient to establish a second stalking offense. The three occasions on which defendant followed, watched, or approached Ms. R ¡ª when defendant observed her leaving for church; the encounter in the fitness room; and the encounter in the stairway ¡ª were not factually distinct. Although approximately three months elapsed between the first two occasions and the third, all took place in or around the victim’s apartment complex, and defendant’s conduct indicated that his intent to make advances toward Ms. R remained consistent. Moreover, during the second and third encounters, defendant referenced a prior encounter, and no intervening events occurred to sever the connection between each of his advances.

Even if the third encounter, which took place three months after the first two encounters (which had taken place within one week of each other) was factually distinct from the first two, it would not support a second count of stalking because no additional contact or surveillance took place thereafter. That is, even as a separate transaction, defendant’s third encounter with Ms. R did not constitute the offense of stalking because it was not repeated. See ¡ì 18-9-111(4)(b)(I), (III).

The court found that this interpretation was fully consistent with the express purpose of the stalking statute, which is to “recognize the seriousness posed by stalking” and “encourage[] and authorize[] effective intervention before stalking can escalate into behavior that has even more serious consequences.” ¡ì 18-3-601(2), C.R.S. 2010

One Punishment for One Crime of Stalking

One person may stalk another in a wide variety of manners, and that victims’ responses to stalking behavior similarly may vary, ….but imposing multiple convictions for acts falling within a single course of conduct does not.