One year after the U.S. Supreme Court imposed a higher threshold for stalking prosecutions that rely upon a defendant’s threatening speech, Colorado’s highest court will examine whether other stalking behaviors must also account for defendants’ mental state to secure a conviction.

In a case that originated in Arapahoe County and culminated in a 2023 Supreme Court decision, the justices ruled 7-2 in Counterman v. Colorado that prosecutors must prove an alleged stalker has some awareness about the threatening nature of his communications — not just that his conduct toward the victim was objectively harmful. The Supreme Court settled on a mental state of recklessness, meaning a defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

However, communications are not the only conduct that Colorado deems “stalking.” A stalker can also violate the law by repeatedly following, approaching, contacting or placing their victim under surveillance in a way that causes the person to suffer serious emotional distress. But do prosecutors need to prove a defendant acted recklessly in those instances, too?

Earlier this month, the district attorney’s office for Jefferson County asked the Colorado Supreme Court to answer “no,” arguing a trial judge improperly extended the Counterman rule to forms of stalking that do not revolve around a defendant’s speech.

In Counterman, the U.S. Supreme Court’s majority was concerned Colorado’s stalking law could criminalize speech protected by the First Amendment. A defendant’s awareness of the threatening nature of his communications, therefore, would avoid chilling otherwise lawful commentary. At the same time, Justice Sonia Sotomayor wrote separately to caution there are other ways to commit stalking that have fewer constitutional implications.

“The content of the repeated communications can sometimes be irrelevant, such as persistently calling someone and hanging up,” she wrote. “Repeatedly forcing intrusive communications directly into the personal life of ‘an unwilling recipient’ also enjoys less protection.”

David Samuel Crawford stands accused of two counts of stalking in Jeffco. Allegedly, his ex-girlfriend broke off their relationship in 2018 and relocated from Florida to Colorado. Despite efforts to block communication with Crawford, he allegedly sent numerous emails and phone messages in the ensuing years, along with various gifts. The woman told Crawford to stop, and said she was scared for her life thinking Crawford would show up unannounced.

On May 4, 2023, the woman returned to her Arvada home and allegedly saw Crawford standing in her front yard staring into her living room. Police arrested him.

Originally, prosecutors charged Crawford with one count of stalking, alleging he “repeatedly followed, approached, contacted, placed under surveillance, or made any form of communication with” the victim. After the Counterman decision, however, the district attorney’s office moved to modify the charges into two counts of stalking: one for contacting the victim and the other for following, approaching or surveilling her.

The defense moved to dismiss the case, arguing Colorado’s stalking law was unconstitutional as applied to him and generally.

“In our case, there are no words, symbols, images or cues that even resemble a true threat,” wrote attorney Patrick D. Mika. He added that contacting, following, approaching and surveilling were behaviors that, to varying degrees, are “integral to expressive speech that is protected by the First Amendment.”

Prosecutors maintained they had no intention of using the contents of Crawford’s communications to prove stalking. Instead, it was his repeated, unwanted contacts of the victim, unrelated to his speech, they wanted to pursue.

In February, District Court Judge Diego G. Hunt heard arguments from both sides. Although the district attorney’s office acknowledged it “corrected the charges” to avoid prosecuting Crawford for his speech, Hunt believed there still needed to be proof of Crawford’s mental state.

“It is, nevertheless, because the conduct implicates speech, then you would need to demonstrate that the defendant in this case acted with reckless disregard,” he said.

“Understood,” responded Deputy District Attorney Riley Gonya.

On the first day of trial in July, prior to bringing in the jury, Hunt reiterated his belief that to the extent prosecutors were arguing Crawford’s contacts constituted stalking, “the defense is entitled to the instruction concerning the recklessness of the defendant’s state of mind.”

Gonya responded that Hunt’s directive represented “a change in the court’s ruling,” and argued Crawford’s repeated contacts with the victim were separate from the content of his communications — which were not the basis for the stalking charges.

“Although they’re being framed as contacts,” Hunt replied, “the contacts that we’re talking about are emails and text messages, which necessarily implicates speech, which necessarily implicate the First Amendment.”

The prosecution then asked Hunt to postpone the trial so it could seek review in the state Supreme Court. Hunt agreed to do so. Subsequently, the district attorney’s office petitioned the Supreme Court to rule that Hunt’s interpretation of Counterman stretched the U.S. Supreme Court’s decision to conduct that has nothing to do with speech.

“This expansive view of Counterman is contrary to its plain terms and conflicts with other decisions, both in Colorado and nationally,” wrote Senior Appellate Deputy District Attorney Kevin E. McReynolds. The Rocky Mountain Victim Law Center submitted a supportive brief warning against imposing a higher conviction threshold for non-speech-related stalking.

The state Supreme Court ordered Hunt and Crawford to respond to the prosecution’s petition.

The case is People v. Crawford.