18-9-111. Harassment - stalking.

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:

(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or

(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or

(c) Follows a person in or about a public place; or

(d) Repealed.

(e) Initiates communication with a person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, or computer system 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, or computer system that is obscene; or

(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or

(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

(1.5) As used in this section, unless the context otherwise requires, "obscene" means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.

(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, or national origin.

(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.

(4) (a) The general assembly hereby finds and declares that stalking is a serious problem in this state and nationwide. Although stalking often involves persons who have had an intimate relationship with one another, it can also involve persons who have little or no past relationship. 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. A stalker may also develop jealousy and animosity for persons who are in relationships with the victim, including family members, employers and co-workers, and friends, perceiving them as obstacles or as threats to the stalker's own "relationship" with the victim. Because stalking involves highly inappropriate intensity, persistence, and possessiveness, it entails great unpredictability and creates great stress and fear for the victim. Stalking involves severe intrusions on 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, even in the absence of express threats of physical harm. The general assembly hereby recognizes the seriousness posed by stalking and adopts the provisions of this subsection (4) and subsections (5) and (6) of this section with the goal of encouraging and authorizing effective intervention before stalking can escalate into behavior that has even more serious consequences.

(b) 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, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship; or

(II) Makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(III) 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 subparagraph (III), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(c) For the purposes of this subsection (4):

(I) Conduct "in connection with" a credible threat means acts which further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat;

(II) "Credible threat" means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

(III) "Immediate family" includes the person's spouse and the person's parent, grandparent, sibling, or child; and

(IV) "Repeated" or "repeatedly" means on more than one occasion.

(5) Where a person commits stalking under paragraph (b) of subsection (4) of this section, the following shall apply:

(a) A person commits a class 5 felony for a first offense.

(a.5) For a second or subsequent offense, if such offense occurs within seven years of the date of a prior offense for which such person was convicted, the offender commits a class 4 felony.

(a.7) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10).

(b) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against such person prohibiting the behavior described in paragraph (b) of subsection (4) of this section, such person commits a class 4 felony. In addition, when a violation under subsection (4) of this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentence imposed for such violation pursuant to this subsection (5) shall run consecutively and not concurrently with any sentence imposed pursuant to section 18-6-803.5 and with any sentence imposed in a contempt proceeding for violation of the court order. Nothing in this paragraph (b) shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

(6) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating such report.

Source: L. 71: R&RE, p. 469, § 1. C.R.S. 1963: § 40-9-111. L. 76: (1)(e) R&RE and (1.5) added, p. 561, §§ 1, 2, effective May 21. L. 81: (1)(e) amended, p. 981, § 6, effective May 13. L. 90: (1)(d) repealed, p. 926, § 11, effective March 27. L. 92: (2) amended and (4) to (6) added, p. 413, § 1, effective July 1. L. 93: (5)(a) amended and (5)(a.5) added, p. 1703, § 1, effective July 1. L. 94: IP(1), (1)(g), and (1)(h) amended, p. 1463, § 3, effective July 1; (4) and (5) amended, p. 2018, § 1, effective July 1; (5)(b) amended, p. 1719, § 14, effective July 1. L. 95: (5) amended, p. 1258, § 26, effective July 1. L. 97: (4)(b)(I) amended, p. 1540, § 4, effective July 1. L. 99: (2), (4), and (5) amended, pp. 795, 792, §§ 4, 1, effective July 1. L. 2000: (1)(e) and (3) amended, p. 693, § 4, effective July 1. L. 2003: (5)(b) amended, p. 1014, § 23, effective July 1. L. 2004: (5)(a.7) added, p. 636, § 11, effective August 4. L. 2009: (1)(e) amended, (HB 09-1132), ch. 341, p. 1793, § 4, effective July 1.

Editor's note: (1) Amendments to subsection (5) in House Bill 94-1045 and House Bill 94-1126 were harmonized.

(2) Section 6 of chapter 341, Session Laws of Colorado 2009, provides that the act amending subsection (1)(e) applies to offenses committed on or after July 1, 2009.

Cross references: For provisions concerning harassment by debt collectors or collection agencies, see § 12-14-106.

Gravamen of this offense is the thrusting of an offensive and unwanted communication on one who is unable to ignore it. People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979).

Defendant's spitting on the tenant constituted "physical contact" within the meaning of subsection (1)(a). People v. Peay, 5 P.3d 398 (Colo. App. 2000).

Subsection (1)(d) held unconstitutionally vague. This subsection violates the due process clause because it contains no limiting standards to define what conduct is prohibited and, conversely, what conduct is permitted. People v. Norman, 703 P.2d 1261 (Colo. 1985).

Former subsection (1)(e) was facially overbroad and therefore unconstitutional. Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).

Subsection (1)(e) held not to be unconstitutionally vague because the statute defined the offense with particularized standards to limit the scope of the offense and the presence in the statute of the words "annoy" and "alarm", by themselves, were not sufficient to render the statute unconstitutionally vague. People v. McBurney, 750 P.2d 916 (Colo. 1988).

Subsection (1)(g) is facially overbroad and unconstitutionally vague and there are no limiting constructions that will render it constitutional. People v. Smith, 862 P.2d 939 (Colo. 1993).

A defendant lacks standing to challenge the constitutionality of a statute as facially overbroad when the defendants alleged speech is precisely the type of activity which the telephone harassment statute was designed to regulate. People v. McBurney, 750 P.2d 916 (Colo. 1988).

This section and § 18-3-207, which classifies criminal extortion as a felony, address separate and distinct crimes and the classification of such offenses have a rational basis in fact and are reasonably related to legitimate government interests. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).

Subsection (1)(h) is not unconstitutionally vague on its face. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

The limited scope of the statute brings it within permissible limitations on free expression. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

Subsection (4)(a)(II) held constitutional. By burdening only those communications furthering, promoting, or advancing an expressed credible threat, subsection (4)(a)(II) does not reach protected conduct. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Nor is the provision void for vagueness since a person of ordinary intelligence can know what conduct is proscribed. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Requiring a jury to determine "reasonableness" does not make subsection (4)(b)(III) unconstitutionally vague. The statute prohibits contact that inflicts "serious emotional distress" and provides an objective "reasonable person" standard to measure whether the emotional distress inflicted upon the victim was "serious". Thus, it provides notice that conduct that would cause a reasonable person serious emotional distress is prohibited. The only uncertainty raised by the statute is whether the conduct would cause a reasonable person serious emotional distress, and the determination of "reasonableness" is a question for the jury. People v. Yascavage, 80 P.3d 899 (Colo. App. 2003), aff'd on other grounds, 101 P.3d 1090 (Colo. 2004).

Subsections (4)(b)(I) and (4)(b)(III) are not unconstitutionally vague or overbroad. The definition of "credible threat" does not substantially burden speech and is specifically sufficient to provide guidance to the public. The term "serious emotional distress" sets forth an identifiable objective standard for measuring the proscribed conduct and therefore is not unconstitutionally vague. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006); People v. Richardson, 181 P.3d 340 (Colo. App. 2007).

Right to access to courts does not include right to file lawsuits in abusive manner; therefore, the stalking convictions that were based, in part, on defendant filing 13 frivolous lawsuits against the victim did not violate the defendant's right to access the courts. People v. Richardson, 181 P.3d 340 (Colo. App. 2007).

A defendant does not need to know that his or her conduct would cause a reasonable person serious emotional distress. This reading of subsection (4)(b)(III) would impart a nonexistent requirement that the defendant must intend to cause serious emotional distress. The defendant must only be aware of his or her conduct, and the result of that conduct is evaluated under an objective standard to which his or her specific intent is irrelevant. People v. Yascavage, 80 P.3d 899 (Colo. App. 2003), aff'd, 101 P.3d 1090 (Colo. 2004).

What subsection (1)(h) prohibits. Subsection (1)(h) prohibits (1) "fighting words", as heretofore defined, addressed to another person, (2) consisting of insults, taunts, or challenges, (3) repeatedly made, and (4) with intent to harass, annoy, or alarm another person. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

Subsection (1)(h) requires an objective determination: Whether the words when directed to an average person would tend to induce an immediate breach of the peace. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

"Annoy" in this section means "to irritate with a nettling or exasperating effect". Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).

"Alarm" in this section means "to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm". Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).

"Repeatedly" is a word of such common understanding that its meaning is not vague. It simply means in the context of subsection (1)(h) that the defendant uses insulting, taunting, or challenging language more than one time. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

An electronic surveillance device installed on the victim's car "repeatedly" stored information about her movements thereby allowing the defendant to gain information about her on repeated occasions, and therefore satisfying the requirements of this section. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Use of "obscene" in subsection (1)(e). Although subsection (1)(e) uses the word "obscene" to describe the speech which is prohibited, that subsection is clearly not designed to regulate the purveyance of "obscenity" as that word is used in Miller v. California (413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L.Ed.2d 128 (1973)). Whatever the requirements of Miller v. California may be in a prosecution for alleged violations of law prohibiting published obscenity, those requirements are inapposite when the question is whether the state may prohibit unwanted verbal assaults on a person within the privacy of his own home. People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979).

The phrase "in connection with" indicates an intention by the general assembly that a continued relationship between the credible threat and the repeated communications is contemplated. People v. Baer, 973 P.2d 1225 (Colo. 1999).

A person must directly, or indirectly through another person, knowingly make a credible threat to another person and repeatedly make any form of communication with the recipient of the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).

The repeated communications may occur before, during, or after the credible threat but they must be connected to the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Whether the repeated communications are "in connection with" the threat is a matter of fact just as the existence of a credible threat itself. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Trial court erred in not instructing the jury that defendant must knowingly engage in conduct taken in connection with the threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

The defendant could not have been charged with a violation of subsection (4) until all of the elements of the crime are completed. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

The defendant may be charged with increased penalties because of amendments to subsection (4) that became effective in July when the defendant did not consummate following the victim until August, but had committed elements of the offense prior to July. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

The phrase "under surveillance" includes electronic surveillance that records a person's whereabouts as that person moves from one location to another and allows the stalker to access that information either simultaneously or shortly thereafter. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Evidence sufficient to establish the conviction under subsection (1)(c). Although the evidence could be viewed in two ways, there was sufficient evidence to support the jury's inferences that the defendant did follow the victim in a public place. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Defendant's statement that he was going to kill the victim if she did not see him was sufficient evidence to support a finding that he had made a credible threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

Evidence sufficient to support a finding that contact was made in connection with a credible threat. Defendant called the victim repeatedly on one day and threatened that he would kill her if she did not see him. Following this threat, defendant contacted the victim numerous times in person and by telephone and repeatedly asked to see her. This evidence is sufficient to support a finding that the contact was made in connection with a credible threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

Serious emotional distress was supported by the evidence where the victim testified that she suspected the defendant was stalking her for over a month, that she was concerned about constantly being watched, that she took alternate routes to her destinations, that she was uncomfortable and had stomach aches, that she had trouble sleeping and was anxious, and that she took a leave of absence from work to enter a safe house for her safety. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Evidence sufficient to support a finding beyond a reasonable doubt of serious emotional distress where the victim testified that defendant's behavior caused her to change her work schedule, take days off from work, and feel unsafe; she was nervous and had trouble sleeping; and she felt she was constantly being watched by defendant. The statute is clear that serious emotional distress need not be such as would compel professional treatment or a breakdown. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Evidence sufficient to establish a "credible threat". The credible threat does not need to be separate from the harassing behavior or verbal. Therefore, evidence that the defendant was only at the victim's place of employment when the victim was there, the defendant would approach and make eye contact with the victim, and the defendant found out where the victim went to church and attended that church was sufficient to establish a "credible threat". People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Court's instruction for harassment by stalking was appropriate. The court instructed the jury that "knowingly" applied to both the credible threat and to the conduct in connection with the threat. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

The mens rea of knowingly in the crime of emotional distress harassment by stalking does not apply to the element that the stalker be aware that his or her conduct would cause serious emotional distress to a reasonable person. Generally, the mental state applies to all elements of an offense unless the legislative intent is to limit its application. The general assembly recognized the stalker may be oblivious to reality of the emotional distress he or she is causing, and, therefore, it would be absurd to allow a defendant so out-of-touch with reality to avoid criminal prosecution. People v. Cross, 127 P.3d 71 (Colo. 2006).

The penalty provision in subsection (5)(a.5) establishes a sentencing enhancer. Since the statute does not prescribe a burden of proof, the prosecution is required to prove the prior conviction by only a preponderance of the evidence, and the court may properly determine the issue without the jury. Therefore, the court erred in admitting the prior conviction into evidence as an element of the harassment by stalking offense. The error required reversal since the evidence was highly prejudicial and had no or little probative value. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Because the elements of violation of a mandatory restraining order and the elements of harassment by stalking are not the same, the subsequent prosecution of defendant did not violate double jeopardy protections. People v. Carey, 198 P.3d 1223 (Colo. App. 2008).

Applied in Verner v. Colo., 533 F. Supp. 1109 (D. Colo. 1982).