A Closer Look At The Colorado Crime of Stalking – 18-3-602

By H. Michael Steinberg Colorado Criminal Defense Lawyer

While I have previously written on the Colorado crime of stalking,  the crime is charged more and more commonly in Colorado and a deeper understanding of this complex crime is needed.

Stalking is a unique and relatively “new” crime whose elements are somewhat unusual and therefore equally unique to defend. This article closely explores the crime of stalking and issues surrounding both prosecuting and defending stalking cases in the courts of Colorado.

To convict a person of the crime of stalking in Colorado, a jury must find that the state has proven one of the following three possible types of the crime of stalking. All crimes are comprised of “elements.” The elements of the crime of stalking. as is true with all crimes, must be proven beyond a reasonable doubt for a jury to find the accused guilty of the crime.

The Colorado Criminal Jury Instructions (CJI) are uniformly used in Colorado criminal trials to instruct the jury on exactly what must be proven for the jury to return a verdict of guilty for the crime of stalking.

These instructions of law parallel the three sections of Colorado’s stalking laws 18-3-602 (1) (a) – (c).

18-3-602 (1)(a) Credible Threat Stalking (Credible Threat and Conduct) – Type 1

The elements of the crime of stalking (credible threat and conduct) are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,

4. made a credible threat to another person, either directly, or indirectly through a third person, and

5. in connection with the threat, repeatedly followed, approached, contacted, or placed under surveillance that person, a member of that person’s immediate family, or someone with whom that person was having or previously had a continuing relationship.

18-3-602 (1)(b) Credible Threat Stalking (Credible Threat and Repeated Communication – Type 2

The elements of the crime of stalking (credible threat and repeated communication) are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,

4. made a credible threat to another person, either directly, or indirectly through a third person, and

5. in connection with the threat, repeatedly made any form of communication with that person, a member of that person’s immediate family, or someone with whom that person was having or previously had a continuing relationship, regardless of whether a conversation ensued.

18-3-602 (1)(c) Stalking (Serious Emotional Distress) – Type 3

The elements of the crime of stalking (serious emotional distress) are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,

3. knowingly repeatedly followed, approached, contacted, placed under surveillance, or made any form of communication with another person, either directly, or indirectly through a third person,

4. in a manner that would cause a reasonable person to suffer serious emotional distress, and

5. which did cause that person, a member of that person’s immediate family, or someone with whom that person was having or previously had a continuing relationship to suffer serious emotional distress.

The Possible Penalties for a Conviction of the Colorado Crime of Stalking 18-3-602 are Serious.

1. First time stalking penalties in Colorado is a Class Five Felony and can include: 1 – 4 years in a Colorado prison (with mandatory 2 year period of parole), and/or a fine of $1,000.00 to $100,000.00.

2. If the conviction has a component of also violating a contemporaneous protective order protecting this victim, OR if there has been a prior “second or subsequent” conviction for a stalking offense, the penalties increase to a Class Four Felony– 2 – 8 years in a Colorado prison (with a mandatory 3 year period of parole), and/or a fine of $2,000.00 to $500,000.00.

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A consistent theme underlays all three of Colorado’s stalking crimes. Each crime requires a higher degree of harassment than the misdemeanor crime of harassment – 18-9-11.

This article takes a closer look at the reasoning behind the legislative decision to create and enact the felony crime of stalking.

The crime of stalking is actually an enhanced form of the Colorado crime of harassment. In fact, until relatively recently, the felony stalking law was located in Colorado’s harassment statute. It was moved and renamed “Vonnie’s Law” in 2012.

Like all forms of harassment, this crime turns on whether the behavior of the suspect rises to a level of criminal conduct or whether the acts, as alleged by the state as constituting stalking, are in reality explainable if viewed objectively … and therefore not criminal.

This is a matter of perception and analysis of the factfinder – usually the jury. Unintended and non-criminal acts of desperation of a person sincerely, and with no criminal intent, attempting only to regain the love and trust of another can mistakenly be perceived as “stalking behavior.”  Many times the mistake occurs because of untrained, uninformed, overreaching (but perhaps well-meaning) agents of law enforcement.

The policymakers who have enacted these laws believe, (in some cases rightly so), that effective intervention by law enforcement must immediately occur before perceived harassing behavior escalates into more serious consequences. The emphasis of law enforcement then is to try to prevent the commission of serious criminal conduct with early intervention well before a pattern of stalking can occur.

In my opinion, when the focus of criminal laws is predicated on early intervention – stopping future behavior based on past conduct, mistakes are made.

Any analysis of criminal conduct that is alleged as stalking usually focuses on the immediate past relationship of the parties involved and unlike many other crimes, stalking is a crime based on a pattern of a “perceived degree of escalation” of what might otherwise be considered non-criminal conduct.

While All 50 states have criminal laws against stalking, the elements of the crime of stalking can vary greatly by state. Typically the crime involves a pattern of following, watching, or monitoring another person with the criminal intent to harass, frighten, intimidate, threaten, or cause the person emotional distress.

Types of stalking “behaviors” might include:

cyberstalking (email/blogs/internet/chat rooms);

electronic monitoring (computer spyware/video and digital cameras/listening devices/GPS); and

obsessive and repeated conduct such as multiple phone calls/text messages in a short period of time;

following behaviors such as showing up or driving by a person’s home, workplace, or school or placing a GPS device on the victim’s vehicle in order to track that person or retaining an investigator to track that alleged victim…

These behaviors may be considered as “crossing the line” into stalking behaviors. But are they always?

On the other hand historically perfectly innocent behaviors such as sending letters, flowers, gifts, and mementos to a former lover in an attempt to reconcile and reclaim their relationship can be perceived as “stalking” by the alleged victim or interpreted by so-called domestic violence “experts” as stalking behaviors.  Contacting a person’s friends, family members in an attempt to communicate with a former lover, even if done innocently, can also be interpreted as stalking when in fact it is not criminal conduct.

Important Legal Definitions that Apply to Colorado’s Stalking Statutes

The definitions of Colorado’s stalking laws are a good place to start the analysis of what is criminal and what is innocent.

Conduct “in connection with” a credible threat is defined as acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.

“In connection with” indicates an intention that a continued relationship between the credible threat and the repeated communication is contemplated and that they are connected.

Credible Threat is defined as:

(a) 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 their immediate family, or someone with whom the person has or has had a continuing relationship with.

(b) The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear. (For example, conditional threats to kill are considered “credible threats.)

Severe emotional distress – A defendant need not “intend” severe emotional distress. The distress at issue is measured and evaluated by a jury using an objective standard to which the defendant’s specific intent is irrelevant.

Essentially, a jury decides whether the conduct, measured objectively, would cause severe emotional distress. Notably absent from the definition section of Colorado’s stalking statute is a definition of “serious emotional distress.”

One quick note: the alleged victim of stalking need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

“Repeated” or “repeatedly” means on more than one occasion.

Because of these broad and poorly defined terms, every case of alleged stalking runs the risk of criminalizing innocuous statements, actions, and behaviors directed at an unusually sensitive listener.

Furthermore, complicating the crime of stalking is that while a defendant in a Colorado “credible threat” stalking case must be found by the fact finder to have actually made a “credible threat” before he or she can be found guilty of that form of stalking, the state is not required to prove that the defendant acted knowingly (was aware) that his or her acts would cause  serious emotional distress (see 1(c) above.)

Finally, it must be pointed out that it is not each individual act of stalking that must cause a reasonable person to suffer emotional distress, but the combined acts of the defendant that would cause such a result for a person to be found guilty of the crime of stalking.

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Defending Against the Colorado Crime of Stalking

If the focus of the crime of stalking is measured in terms of the degree of certain behaviors, defending the case must of course focus on the precise nature of the alleged criminal conduct. What exactly was the alleged criminal conduct? Could the alleged victim or a witness have misunderstood the defendant’s intentions?

For example, a case of alleged “credible threat” stalking may be analyzed by asking a few questions such as:

What was the frequency of the alleged criminal communications?

Was the alleged threat was actually a credible threat at all from an objective standard of proof? Which exact words were threatening and how were they threatening?

Would a reasonable person (not this victim, but a reasonable person receiving these communications) actually be scared, or distressed “in fact” as a result of the alleged communications or “threat”?

Is the alleged victim purposely exaggerating what was actually said in a private conversation? Do they have a motive to exaggerate?

Is the alleged victim lying about the conduct – did she willingly participate in the communications sending “mixed messages” to the defendant at various times during the alleged stalking behaviors?

Was the communication misinterpreted? Such as with intended hyperbole as an exaggerated form of a threat – but never meant to harm the victim or anyone else?

Was there any evidence of obsessive, jealous, or possessiveness on the part of the alleged victim?

Was there constant monitoring of the alleged victim’s activities actually occur during the relationship?

Was there an actual “end” of the relationship, and if it did actually “end” was the accused aware of that fact? How was that measured (who decided the relationship “ended.”)

How was that “end” of the relationship measured against past behaviors such as sometimes occur in the classic “breakup and makeup” love relationship?

Did the defendant continue or escalate his or her conduct after the perceived end of the relationship by the alleged victim?

A Quick WARNING if You Are Under Investigation for Stalking

• NEVER, EVER, EVER contact the alleged victim of a stalking investigation if you are the target of the investigation.
• NEVER try to talk to anyone about the investigation.
• NEVER have any indirect contact with the alleged victim, your mutual friends, or the alleged victim’s friends or coworkers, or the immediate or extended family of the victim.
• NEVER talk to the police about the allegations in the case.
• NEVER provide ANY physical evidence to the police without at least contacting an experienced and qualified lawyer.
• NEVER consent to a search of your home, your car, your cell, your computers, etc

Scrutinizing and Rebutting The Alleged “Science” of Stalking

When the Colorado State Legislature passed the present form of the Colorado crime of stalking 18-3-602 they included this statement of policy.

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. . . .

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 the 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.

It should be clear that it is fundamental to the defense of a charge of the crime of stalking that a complete defense produced  (and paid for) psychological analysis of the defendant may well assist in the defense of the case.

I have written on using Colorado’s DVNRA Lethality Assessment as a tool to establish that the accused is not the “rejected lover stalker type” who, having experienced the unwanted end of a relationship, is now stalking the ex-lover in an attempt to seek some sort of revenge.

If the science of stalking takes the position that stalking behavior:

∙ “involves highly inappropriate intensity, persistence, and possessiveness,

∙ entails great unpredictability

∙ involves severe intrusions on the victim’s personal privacy and autonomy…”

…then it seems clear that the absence of these behaviors or clear alternative and logical explanations of the observed behaviors would establish that the stalking “evidence” may have been misinterpreted by the victim and law enforcement and can therefore also be used to defend against having committed the crime of stalking.

Recent research by Robert T Muller Ph.D. (is a professor of psychology at York University) author of “In the Mind of a Stalker,” describes the actions of the stalker as “relentless conduct,” and “neurotic” (behaviors).

However, it must be pointed out that someone attempting to regain a lost relationship might act in this exact way out of love and not neuroses or with criminal intent.

Muller writes that:

“there is little to explain what exactly motivates the stalker…” and that “most stalkers do not suffer from hallucinations or delusions, although many do suffer from other forms of mental illness including depression, substance abuse, and personality disorders.”

It makes sense then, to perform a domestic violence evaluation such as a  DVRNA evaluation which includes Domaine G (see below) to establish that the acts of the accused are NOT the behavior of a “stalker.”

Here is the relevant section of the DVRNA “Domain” that addresses so-called “stalking behaviors.”

Domain G: Obsession with the victim.

Stalking or monitoring Stalking, as defined by the National Center for Victims of Crime, Stalking Resource Center, is a pattern of repeated, unwanted attention, harassment, and contact.

It is a course of conduct that can include:

∙ Following or lying in wait for the victim

∙ Repeated unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, and/or e-mail

∙ Damaging the victim’s property

∙ Making direct or indirect threats to harm the victim, the victim’s children, relatives, friends, or pets

∙ Repeatedly sending the victim unwanted gifts

∙ Harassment through the Internet, known as cyberstalking, online stalking, or Internet stalking

∙ Securing personal information about the victim by accessing public records (land records, phone listings, driver or voter registration), using Internet search services, hiring private investigators, contacting friends, family, work, or neighbors, going through the victim’s garbage, following the victim, etc.2.

∙ Obsessive jealousy with the potential for violence, violently and constantly jealous, or morbid jealousy.

∙ Morbid jealousy describes a range of irrational thoughts and emotions, together with associated unacceptable or extreme behavior, in which the dominant theme is a preoccupation with a partner’s sexual unfaithfulness based on unfounded evidence.

∙ Individuals may suffer from morbid jealousy even when their partner is being unfaithful, provided that the evidence that they cite for unfaithfulness is incorrect and the response to such evidence on the part of the accuser is excessive or irrational.

∙ Morbidly jealous individuals interpret conclusive evidence of infidelity from irrelevant occurrences, refuse to change their beliefs even in the face of conflicting information, and tend to accuse the partner of infidelity with many others.

It is clear that Colorado stalking cases are difficult and can have very serious lifelong consequences if not defended properly. Sometimes other crimes are charged along with a stalking charge. These can include burglary, theft, criminal mischief, criminal trespass, violation of civil and/or criminal, protection orders, misdemeanor harassment, and obstructing telephone services. Each of these only compounding the problematical nature of the stalking charge.

I am hopeful that this brief article has provided some insight to the reader about the issues surrounding the Colorado crime of stalking..

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.