A jury in Montezuma County Court on Friday found Sherry Simmons, organizer of the Montezuma County Patriots, not guilty of harassing Peace and Justice marchers Jan. 2.
Jurors deliberated for less than an hour before deciding in Simmons’ favor.
"I give all the glory to God,“ Simmons told The Journal Friday evening.
The Journal left a message for alleged victim Raleigh Cato (formerly Marmorstein), organizer of the Peace and Justice group requesting comment.
After a full day in court Thursday and initial proceedings late Wednesday afternoon, the trial ended in about three hours Friday. The 22nd Judicial District Attorney’s Office plans to file an appeal.
Some of the jury instructions seemed to indicate that the act of following was a protected act under the Constitution, said Assistant District Attorney Will Furse.
The appeal will also include the argument that the First Amendment was not an applicable defense under Colorado law, he said.
Simmons, representing herself in court, testified Friday, presenting evidence about the January confrontation from a different angle.
Simmons was charged with third-degree harassment after she and a group of 10 to 15 Montezuma County Patriots group followed five Peace and Justice marchers from the intersection of Elm Street and West Main Street to St. Barnabas Episcopal Church, 110 W. North St., about noon Jan. 2.
A 34-minute video captured by Cato depicted the encounter between the groups and was played in court Thursday. An excerpt was revisited Friday by Deputy District Attorney Jessica Salem Friday.
Simmons’ video showed the event from the back end, and she said at one point she was alone on a corner with her flag, before catching up to join the Patriots, who were following the Peace and Justice group.
Simmons raised the question of whether demonstrating with counter protesters – or marching behind, in front of or in the middle of them – was a crime.
Five other people with the Patriots group were cited with harassment for the Jan. 2 incident, but only Simmons decided not to enter into a diversion agreement. She said she couldn’t, knowing that she wasn’t guilty, and elected to have a jury trial.
“I’m an honest person,” she said. “If I did wrong to anybody, I would admit it, I would apologize for it, and I would seek to make it right.”
Intent – a key word in this case – was never there to harass anyone, Simmons said.
She said she told others with the Patriots not to use the F-word, although she said she wouldn’t apologize for their speech, as they had the right to say what they wanted.
Prosecutor Salem repeatedly insisted that the Constitution was not a pillar of this case.
“Being a protester does not give you any extra rights while you are speaking the truth as you know it to harass others,” she said.
Following, she insisted, was not protected by the Constitution.
“Several times during this trial it seems like the Constitution has been attacked over and over again,” Simmons said at one point.
Judge JenniLynn Lawrence, however, argued that the Constitution and the First Amendment were woven into the fabric of the case, and that the case wasn’t as straightforward as a harassment case that might involve a spouse incessantly pursuing the other.
The Peace and Justice group, Lawrence said, still had their signs up when walking to the church, where they took “sanctuary,” and the Patriots continued to march after they disbanded.
It wasn’t going to be her call whether the interactions were peaceful or not, but the jury’s, Lawrence said.
Section 8 of Colorado Statute 18-9-11 says: “This section is not intended to infringe upon any right guaranteed to any person by the First Amendment to the United States Constitution or to prevent the expression of any religious, political, or philosophical views.”
That section inherently applied to each portion of the statute, Lawrence said, including section c: “A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she follows a person in or about a public place.”
The Constitution didn’t provide Simmons’ defense, the defendant argued. Rather, it provided the foundation for why she was marching on Main Street in the first place. She wasn’t marching to target anyone, but because she cared about the issues she was raising, she said.
Prosecutors with the 22nd Judicial District Attorney’s Office took issue with Lawrence’s instructions.
“We respect the verdict and thank our jurors for their time and attention,” Furse said in a statement. “We believe, however, they were misled by the trial judge, who issued flawed jury instructions. We intend to appeal.”
“We sincerely appreciate our witnesses and victims who have shown courage and valor throughout this imperfect process,” Furse added. “Today we will continue to fight for the advancement of our Constitutional rights without fear of retaliation, harassment or intimidation.”
A court case ruled applicable in this case, People in Interest of R.D., in which a child issued threats by way of Tweets, was also found to be irrelevant, Furse said.
A phone call between Patricia Coen and the investigating officer Steven King was played in the trial, in which Coen admitted to being present Jan. 2 and pointing a can of wasp spray at Dave Harrison, who was among those cited for harassment that day.
Members of the Montezuma County Patriots expressed concern about having the spray pointed at them Jan. 2 to King during his investigation.
Witness testimonies the previous day saw Cato maintain her position that she felt harassed by Simmons. Peace and Justice members were shaken that day, she said, and later Facebook exchanges with Simmons did not quell her feelings about the encounter.
The pair had never officially met, she said.
The encounter became close and at one point, the flag Simmons’ was carrying brushed Cato, she said. Cato said that Simmons did not speak to her in the more aggressive manner others had that day.
The Jan. 2 incident “felt different” from previous brushes the groups had experienced, Cato said.
She said she felt the physiological symptoms of fear when seeing Patriots approach with their flags, and felt relief when they walked away from the church.
Testimony from Mayor Mike Lavey confirmed his presence in the Jan. 2 incident, and his concern that things might get physical, although he maintained a position of neutrality.
King’s testimony revealed that he cited the Patriots he could identify in the recording of the Jan. 2 incident.
Simmons didn’t call any of her own witnesses to testify, but actively cross-examined those selected by prosecutors. She originally intended to question individuals listed on a preliminary endorsed witness list from the prosecution, but those witnesses were not called.
