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People v. Cross3/11/2004
Defendant, Brian M. Cross, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of felony harassment by stalking, § 18-9-111(4)(b)(I), (III), C.R.S. 2003, and one count of misdemeanor harassment, § 18-9-111(1)(c), C.R.S. 2003. We reverse and remand for a new trial.
From mid-April until June 2001, defendant went to a shopping center almost daily and spent several hours sitting on benches near, and circling, a kiosk which was the victim's place of employment. Initially both the victim and employees of an adjacent store were concerned about defendant's conduct and were unsure as to his target. Ultimately, however, it became apparent that the victim was the object of defendant's attention.
The victim felt threatened by defendant's presence and reported his activities to the mall's security personnel. She began using different doors to enter and leave the mall, had her husband drive her to and from work, and had her supervisor modify her work schedule so that she would not leave work alone.
On one occasion, defendant approached the kiosk, tapped on it, smiled at the victim, and then returned to the benches and watched the victim for the remaining two and one-half hours of her shift. Later that day the victim and her family went to an evening church service they regularly attended. Defendant was present at the church and, again, appeared to be watching her. Shortly after the victim's husband joined her, defendant left. Defendant continued to watch the victim at work over the next few days. Defendant was soon arrested for a parole violation arising out of a previous harassment by stalking conviction (the 1999 conviction) and was charged with the offenses in this case.
Harassment by stalking is a class 5 felony which is elevated to a class 4 felony if there has been a previous conviction of a similar offense within the preceding seven years. See § 18-9-111(5)(a.5), C.R.S. 2003. The 1999 conviction was such a conviction.
The prosecution filed a notice of intent to admit the 1999 conviction, together with other similar conduct, pursuant to CRE 404(b). The trial court rejected the request on the grounds that the evidence was not probative and was "unfairly highly prejudicial." However, following the trial court's ruling, the prosecution indicated that it would seek to introduce the 1999 conviction as an element of harassment by stalking, the class 4 felony.
In pretrial motions, defendant challenged the use of the 1999 conviction, asserting he received ineffective assistance of counsel in the prior case. Because he was represented by the public defender's office in both instances, he requested appointment of conflict-free counsel. The trial court denied the motion, concluding there was no conflict, and also denied the challenge to the 1999 conviction.
Defendant also requested that the trial court bifurcate the two counts of harassment by stalking so that evidence of the 1999 conviction would not be placed before the jury considering the class 5 felony. In the alternative, he offered to stipulate to the 1999 conviction if he were convicted of the substantive charges. The trial court denied the motion and the offer.
At the time the evidence was admitted, the trial court admonished the jury that the 1999 conviction was admitted for the sole purpose of establishing that defendant had been previously convicted as an element of harassment by stalking and not for any other purpose.
Defendant did not testify, but presented evidence that he had two jobs, that he visited the mall in between jobs to "kill time," and that he played drums in the church band which was perf
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