Colorado’s second-highest court reversed a defendant’s stalking conviction last week for the first time since the U.S. Supreme Court decided in 2023 that prosecutors must prove a defendant had some understanding of the threatening nature of his speech.

Last year, by 7-2, the Supreme Court handed down its ruling in Counterman v. Colorado, a case out of Arapahoe County involving a man convicted of stalking after he deluged a musician with messages both benign and disturbing. The majority determined Colorado could not find the defendant guilty solely if a person could deem his messages objectively threatening.

Instead, to prevent a First Amendment violation, prosecutors now need to show an alleged stalker’s recklessness — meaning he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

On June 6, a three-judge panel for the state’s Court of Appeals concluded the Adams County stalking conviction of Lucas Merklin could not stand in the wake of the Supreme Court’s directive.

“Counterman significantly changed the law applicable to Merklin’s conviction,” wrote Judge Jaclyn Casey Brown, and “we cannot say whether the jury would have convicted Merklin under the correct standard.”

Prosecutors presented evidence that over multiple days, Merklin sent numerous messages to a woman he was dating, identified as T.R., and to her friends. In response to T.R. telling Merklin she wanted to be in a relationship with another man, Merklin texted her:

• “I am coming over to talk. Come outside”

• “How about this if I see his car there I definitely will stop”

• “I will see you later on tonight say what 10 or 11. You should be home by then. If not I will try tomorrow or next”

• “See you in a bit”

• “Answer your phone”

T.R. told Merklin her children were “so damn scared and creeped out” and “you have them so scared.” She asked Merklin to “lose my number,” “leave me the f–k alone” and began to sleep with a gun.

Jurors convicted Merklin of stalking, which happens when someone repeatedly follows, approaches or contacts their victim “in a manner that would cause a reasonable person to suffer serious emotional distress.”

Then the Supreme Court decided Counterman. Justice Elena Kagan wrote that prosecutors needed to show alleged stalkers deliberately persisted in threatening speech not protected by the First Amendment. The extra layer of proof would avoid stifling “protected, non-threatening expression.”

“At trial, the prosecution did not offer evidence or argue that Mr. Merklin had a subjective understanding of the threatening nature of his communications,” Merklin’s attorney, Suzan Trinh Almony, wrote to the Court of Appeals in response.

The appellate panel agreed, noting there was some evidence cutting against the idea Merklin ignored the risk that his communications would be seen as threatening. For example, he told T.R. that “honest to God I would never hurt you or your girls that’s the truth.”

“We also decline to speculate on whether a properly instructed jury would have convicted Merklin on the evidence presented,” Brown wrote. As it stood, “he may have been convicted for engaging in speech that is protected by the First Amendment.”

She added that the error did not trigger double jeopardy and prosecutors could try Merklin again for stalking.

In the most recent version of the Colorado Supreme Court’s template criminal jury instructions, there is a sentence directing juries to consider a defendant’s mental state for stalking offenses. The model instructions note the additional provision applies only in cases where prosecutors are relying on an alleged stalker’s communications, rather than their non-speech conduct.

The Denver District Attorney’s Office, which files in excess of 300 stalking and harassment cases annually, has adopted its own preferred instruction. It asks jurors to find both that a defendant’s statements contained a true threat not protected by the First Amendment and the defendant consciously disregarded its threatening nature.

“We came up with our instruction before the Supreme Court announced the (template) instruction,” said Chief Deputy District Attorney Robert M. Russel. “We came up with our instruction just because we think that’s what’s required given the logic of that opinion.”

However, there remains some confusion about the scope of Counterman‘s mental state requirement in stalking cases. Last fall, a Mesa County judge declined to instruct a jury to consider whether an alleged stalker repeatedly “contacted” his alleged victim — despite the prosecution’s reliance on the defendant’s attempts to confront the woman, rather than his speech to her.

Chief Judge Brian J. Flynn seemed to conflate contacts with communications, and ruled the defendant’s communications contained no unprotected threats for prosecutors to rely upon. Jurors ultimately acquitted the defendant.

To the Court of Appeals, the district attorney’s office argued Flynn’s ruling should be rejected legally, without affecting the acquittal.

The appellate court “should hold that to ‘contact’ a stalking victim does not require inquiry into any communication,” wrote Deputy District Attorney Susan Manown. “For example, a fan who has never met his favorite movie star may directly and repeatedly contact and tell the movie star that he is in love with her.”

District Attorney Daniel P. Rubinstein said it is unclear if the mental state requirement for threatening behavior would necessarily extend to other offenses that implicate a person’s communications, like disorderly conduct.

“We’re wondering, is Counterman going to go beyond the stalking context to any other version of speech? And to what extent are we going to be adding new elements?” he said.

The case is People v. Merklin.