18CA2058 Peo v McClearen 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2058

Teller County District Court No. 17CR116

Honorable Lin Billings Vela, Judge

Kevin Lee McClearen,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE KUHN

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Kevin Lee McClearen, appeals the judgment of

conviction entered after a jury found him guilty of stalking —

prior few months caring for her terminally ill father. About forty

minutes after she got home, the couple started arguing because

McClearen wanted to have sex but N.C. was too tired and because

McClearen accused N.C. of being unfaithful. The argument

continued all night. N.C. described McClearen’s demeanor as “very

irrational, very animated, loud” and stated that she couldn’t get him

to calm down.

¶ 3

Lori Shifflet, N.C.’s lifelong friend, witnessed much of the

argument and recorded about forty minutes of it. Two video clips of

2

the chest. McClearen called 911, law enforcement responded, and

arrested him after determining that he was the initial aggressor and

prohibited McClearen from having any contact with N.C. and

mandated that he vacate their shared home.

¶ 6

On a near-daily basis for a few weeks after the first protection

order was issued, McClearen repeatedly contacted N.C. by text

message, phone, and Facebook Messenger.

¶ 7

McClearen showed up at the house multiple times during that

period. Three days after the protection order was issued, he sent

N.C. a picture of himself that was taken in the house’s garage.

3

¶ 9

Law enforcement responded and stopped McClearen as he was

leaving the neighborhood. McClearen was arrested, and a second

every day during the third week of May.

¶ 11

On June 1, a neighbor delivered an envelope from McClearen

to N.C. The envelope contained legal papers to initiate annulment

proceedings but didn’t contain any personalized communication

from McClearen. N.C. and Shifflet called the police.

¶ 12

In early June, the communication died down. Then, on July

18, McClearen texted N.C. his son’s phone number. On July 21, he

texted N.C “where are my personal files, titles insurance for work all

¶ 13

when she went outside for a smoke break. She called law

enforcement.

4

¶ 14

For his conduct between May and October, as relevant here,

the prosecution charged McClearen with stalking — serious

¶ 15

count of stalking, one count of harassment, and three counts of

VPO: one for the May 8 contact; one for contact from May 15

through May 18; and one for the July 21 contact.1 The jury found

that McClearen committed all of the offenses as acts of domestic

violence. The court sentenced McClearen to an aggregate term of

eight years in the custody of the Department of Corrections.

¶ 16

On appeal, McClearen contends as follows: (1) the stalking —

serious emotional distress statute is unconstitutionally overbroad

on its face; (2) the evidence was insufficient to support his stalking

conviction; (3) the evidence was insufficient to support his VPO

the three remaining VPO counts.

5

in response to a jury question that directed a verdict for the

prosecution; (5) the court erroneously denied his motion for a

evidence in his absence. We address his arguments in turn.

A. Constitutionality of the Stalking — Serious Emotional Distress

¶ 18

We review a facial constitutional challenge to a statute de

novo. People v. Plemmons, 2021 COA 10, ¶ 9 (cert. granted Sept.

13, 2021). We presume that statutes are constitutional, and the

burden is on the defendant to prove that the challenged statute is

unconstitutional beyond a reasonable doubt. Pellegrin, ¶ 29;

Plemmons, ¶ 9.

¶ 19

A statute is overbroad if its scope is so broad that it restricts

or has a chilling effect on constitutionally protected speech. People

not protected. Id. at ¶¶ 12-13.

¶ 20

statute’s plainly legitimate sweep.” Id. at ¶ 14. Unless the statute

reaches a substantial amount of constitutionally protected speech,

an overbreadth challenge fails. Id. at ¶ 15. Where a statute

reaches protected speech but is not substantially overbroad,

whatever overbreadth may exist should be addressed on a case-by-

¶ 22

McClearen acknowledges that our supreme court rejected a

facial overbreadth challenge to a substantially similar statute in

People v. Cross, 127 P.3d 71 (Colo. 2006), but asks us to depart

from its holding in light of the United States Supreme Court’s

decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015).

a particular effect — objectively and subjectively causing serious

emotional distress. 127 P.3d at 79 (quoting § 18-9-111(4)(a), C.R.S.

2005)). That category of conduct is not constitutionally protected.

Id.

¶ 24

In Reed, the Supreme Court struck down a municipal

ordinance that exempted certain categories of signs including

“[i]deological” signs, “[p]olitical” signs, and “[t]emporary [d]irectional

[s]igns [r]elating to a [q]ualifying [e]vent, loosely defined as signs

directing the public to a meeting of a nonprofit group” from its

prohibition on the display of outdoor signs without a permit. 576

¶ 25

Content-based laws — those that target speech based on its

communicative content — are presumptively unconstitutional and

subject to strict scrutiny, meaning they can only be justified if the

government proves that they are narrowly tailored to serve

compelling state interests. Id. at 163. Content-based laws include

those that are facially neutral but cannot be “justified without

reference to the content of the regulated speech,” or that were

adopted by the government “because of disagreement with the

advised him of the contents of the orders when they were issued,2

that his May 8 text to N.C. about not calling the police was a tacit

While the presence of stacked inferences is one factor a court

can consider, it is not alone dispositive of a sufficiency claim. See

id. at ¶ 17. And here, the chain of inferences is not so attenuated

that it would be unreasonable for us to rely on it to sustain the VPO

convictions. See id. at ¶ 30.

¶ 45

Overall, the evidence, when viewed as a whole and in the light

most favorable to the prosecution, was substantial and sufficient to

support the convictions. See id. at ¶ 18.

v. Alemayehu, 2021 COA 69, ¶ 15 n.2.

answering a jury question in a manner that directed a verdict for

the prosecution. We conclude that even if there was error here, it

“[T]he decision of whether to ask a juror’s question is

additional instructions in response to a jury question is also left to

the trial court’s discretion. People v. Burnell, 2019 COA 142, ¶ 36.

The trial court abuses its discretion if its ruling is manifestly

arbitrary, unreasonable, or unfair, or where it is based on an

erroneous view of the law. People v. Manzanares, 2020 COA 140M,

protection order?”

The parties discussed the question at the bench. The court

defendant can’t bond out without signing the protection order.

Defense counsel pointed out that a defendant can choose not to

sign the protection order and remain in custody.

In response to the question and without objection from the

defense, the court, quoting the applicable statute, instructed the

jury:

¶ 52

Even if we assume it was incorrect of the trial court to instruct

the jury on a point of law during witness testimony, we conclude

Marx, 2019 COA 138, ¶ 11. Here, even without the court’s

record contains overwhelming evidence of the defendant’s guilt.”).

As described in Part II.C, the evidence of guilt — that McClearen

signed the protection orders, discussed them with law enforcement

when he was arrested on May 8 and again on May 28, and that his

1. Standard of Review

evidence is likely to have substantially prejudiced the jurors despite

only warranted where the prejudice to the defendant is too

substantial to be cured by other means. Id. at ¶ 27.

Defense counsel objected on CRE 404(b) grounds and

requested a mistrial. Finding that the testimony was vague and

ambiguous, the court denied the motion but offered to provide a

discretion in denying the motion. See People v. Van Meter, 2018

COA 13, ¶ 9.

First, the testimony was vague and ambiguous. See Salas,

¶ 12. Detective Gaffney didn’t provide detailed testimony of any

specific incidents, and the record supports the court’s finding that

¶ 59

Second, the testimony was fleeting, which minimized its

potential prejudice. See People v. Compos, 2019 COA 177, ¶ 37,

serious allegations of criminality. See People v. Krueger, 2012 COA

the court offered to give a curative instruction, which the defense

declined).

¶ 60

Third, there’s no indication in the record that the prosecutor

intentionally elicited the information. See People v. Johnson, 2017

COA 11, ¶ 46; see People v. Everett, 250 P.3d 649, 662 (Colo. App.

F. Right to Be Present

during deliberations and providing an additional instruction while

he was absent from the courtroom. We perceive no error.

counsel of its standard procedure for handling jury requests to

re-watch video exhibits and asked if the defense wanted to be

notified, defense counsel did not make any statements regarding

McClearen’s position on whether he wanted to be present. The

During deliberations, the jury asked to re-watch the videos

from the night of the initial incident. Before playing the recordings,

the court instructed the jury, “[l]adies and gentlemen of the jury,

you may observe the videotape one time in open court and not to

give it any special weight. No juror questions are permitted during

viewing. My staff is available to assist you in the operation of the

computer.”

A juror asked, “did you say we’re allowed to watch it once?”

issue, she can rewind that part.”

¶ 66

The jury watched Exhibit 2B in its entirety. Then, it

submitted a written request to re-watch the second portion of the

decision to replay the video.

Whether a trial court violated a defendant’s right to be present

is a constitutional question that we review de novo. People v.

Guzman-Rincon, 2015 COA 166M, ¶ 29. A criminal defendant has

the right to be present at all critical stages of the prosecution. Zoll

v. People, 2018 CO 70, ¶ 19. But the right to presence is not

benefit of the defendant’s presence would be ‘but a shadow.’” Id.