The Ralph L. Carr Colorado Judicial Center, on Tuesday, Sept. 13, 2022, in Denver, Colo. (Timothy Hurst/The Denver Gazette)

A Colorado Springs lawyer who baited his former girlfriend into violating a no-contact order and threatened to have her jailed if she did not continue communicating with him will receive a new trial, Colorado's second-highest court ruled last week.

Jurors convicted Daniel Neal Noffsinger in 2020 of extortion and harassment stemming from a series of Facebook messages he sent to his girlfriend luring her into a conversation, even though he knew she was bound by a protection order. Noffsinger then turned around and promised to "send you to jail again" if she did not keep talking with him.

A three-judge panel of the Court of Appeals rejected most of Noffsinger's arguments on appeal, including that his speech was protected under the First Amendment. However, the panel agreed his convictions could not stand because the El Paso County judge overseeing the trial failed to properly instruct the jury that Noffsinger's medication could have affected his actions.

"His expert testified that, at the time Noffsinger sent the threatening messages," wrote Judge W. Eric Kuhn in the panel's Sept. 8 opinion, "his anesthetic and post-surgery pain medications — taken pursuant to medical advice — had caused a disturbance in his rational capabilities that resulted in him lacking the capacity to conform his conduct to the requirements of the law. This testimony went unrefuted and, if believed, would have provided a basis for the jury to accept an involuntary intoxication defense."

The Fourth Judicial District Attorney's Office said it was reviewing whether to retry Noffsinger, who briefly worked as a deputy district attorney in the office several years ago. Noffsinger is currently serving a 25-month suspension of his law license for his misconduct in this case, as well as professional violations from two unrelated incidents.

On Dec. 31, 2018, Noffsinger and his girlfriend got into an altercation, which resulted in her arrest on charges of assault. Subsequently, the court issued a protection order for Noffsinger prohibiting his girlfriend from contacting him.

Three months later, the night before Noffsinger would undergo a major surgery, he texted her that he wanted her to know how much he loved her "if something goes wrong." He received no response.

After several hours, Noffsinger sent the same message over Facebook, prefacing it with, "Assuming you blocked my phone, I suggest you don't block this."

The girlfriend responded to ask what type of surgery Noffsinger was having, and said she hoped he recovered quickly. Then she asked why Noffsinger was contacting her.

"Same reason you are," Noffsinger wrote back.

"I doubt it," she replied. "Are you just trying to use something against me in court?"

"Not if you can be kind," Noffsinger said.

The morning following Noffsinger's surgery, his girlfriend sent a final message expressing her love for Noffsinger and wishing him well, but explaining they should not talk to each other and he should refrain from contacting her. Her message prompted Noffsinger to retaliate.

"Then we will do it that way. Enjoy your weekend in jail and your additional charge unless you say otherwise in the next 10 minutes," he wrote. "2 minutes then I have no choice but to send your criminal ass to jail again."

Ten minutes later, he added, "Oh babe ... please don’t make me send you to jail again."

Noffsinger called police, who responded to his home and examined the messages. Although Noffsinger said he was a former prosecutor who knew the law "very well" and that officers had "no choice" but to arrest his girlfriend, police indicated there was no probable cause to do so.

One officer did, however, leave Noffsinger his business card, which Noffsinger photographed and sent in another message to his girlfriend. Police then returned to arrest Noffsinger.

On appeal, Noffsinger listed the categories of speech the U.S. Supreme Court has recognized are not protected by the First Amendment. Those include true threats of violence and speech connected to criminal conduct, which Noffsinger argued did not apply to his Facebook messages.

"Mr. Noffsinger did not threaten violence or unlawful conduct," his attorney, Antony Noble, wrote to the Court of Appeals.

But during oral arguments in July, Judge Lino S. Lipinsky de Orlov repeatedly questioned whether the First Amendment shielded Noffsinger from criminal consequences for manipulating the protection order against his girlfriend.

"Is it legal for a protected person to induce (the girlfriend) to violate the terms of an order for protection?" Lipinsky asked.

"He wasn't charged with that," responded Noble.

"That's not my question. Is it legal to do that?"

"He has every right to contact her," Noble maintained.

Lipinsky clarified whether Noffsinger believed Colorado's extortion law does not criminalize threats to send a person to jail simply because the person will not continue a prohibited conversation.

"I'm saying his conduct does not come into the two categories of prohibited speech," Noble answered.

The panel sided with Noffsinger in finding his speech was not a true threat that would have rendered it unprotected under the First Amendment. However, the appellate court cited a 1999 opinion of the Colorado Supreme Court that deemed "extortionate threats" as falling outside the First Amendment's protections.

"Noffsinger threatened to invoke the action of law enforcement unless (the victim), at the very least, continued to communicate with him — that is, unless she continued to violate the PO," wrote Kuhn, referring to the protection order. "In other words, Noffsinger’s threat can be boiled down to, 'I’ll call the police unless you break the law.'"

Consequently, the government did not apply the extortion law unconstitutionally in obtaining its conviction of Noffsinger.

More problematic for the appellate judges were the circumstances of Noffsinger's surgery around the time he messaged the victim. An expert witness testified the anesthesia drugs and pain medications required for Noffsinger's procedure could have affected Noffsinger's rational thinking. Noffsinger had also consumed approximately three beers after his operation, which worsened the effects of the medication.

At trial, Chief Judge William Bain refused to instruct the jury on a defense of involuntary intoxication, meaning an intoxicating substance — the medication — had made Noffsinger unable to comply with the law. For such an affirmative defense, prosecutors would have needed to prove to jurors that Noffsinger was not involuntarily intoxicated in a manner that compromised his faculties.

Instead, Bain simply directed the jury to consider whether Noffsinger was voluntarily intoxicated, which was a narrower defense to the charges. The difference, explained the appellate panel, is that jurors were never asked to evaluate whether the medication rendered Noffsinger incapable of following the law in the first place.

"True, the jury could have concluded from the bodycam video that Noffsinger was not intoxicated when he was interacting with the police shortly after he sent the threatening messages," Kuhn wrote. "But there was also ample evidence that Noffsinger was intoxicated at that point in time, such as his and his expert’s testimony."

Because there was a possibility that Noffsinger's inability to raise involuntary intoxication as a defense affected the verdict, the Court of Appeals ordered a new trial.

The case is People v. Noffsinger.

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