Jefferson County District Court No. 10CR1060. Honorable Tamara S. Russell, Judge.
John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.
Taubman and Dunn, JJ., concur.
[¶1] Defendant, Anton Paul Dutton, appeals the judgment of conviction finding him guilty of vehicular eluding, aggravated driving after revocation prohibited (aggravated DARP), reckless driving, and driving in excess of the speed limit. He contends that (1) the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by him, (2) there was insufficient evidence to support his reckless driving and vehicular eluding convictions, and (3) his vehicular eluding and reckless driving convictions should be vacated because they are lesser included offenses of aggravated DARP. Because we disagree with Dutton's first two contentions but agree, in part, with his third contention, we affirm with respect to all but his conviction for reckless driving, which we vacate.
I. The Driving Incident
[¶2] A police officer was parked on the side of the road monitoring traffic when he saw a vehicle traveling in excess of the posted speed limit. The vehicle slowed as it approached the officer, and the officer was able to look through the windshield and see a male driver and two female passengers.
[¶3] After the vehicle passed by, the officer pulled behind it, activated his overhead lights, and hit several bursts of his siren. The vehicle eventually pulled over to the side of the road, and the officer parked behind it.
[¶4] As the officer opened the door of his patrol car, the vehicle rapidly accelerated, spinning its tires so that they threw up sand and gravel. The vehicle reached thirty miles per hour before the end of the street. The vehicle then failed to stop at a posted sign and slid sideways through an intersection before turning left onto another street.
[¶5] The officer returned to his patrol car and began pursuing the vehicle, with his overhead lights still activated. He pulled behind the vehicle again, but the vehicle continued to accelerate.
[¶6] Looking ahead, the officer saw a pedestrian with a dog on the left side of the street and another pedestrian on the right side of the street. The pedestrian on the left side was beginning to cross the street, so the vehicle had to swerve in order to avoid hitting the pedestrian. Immediately, the officer ended his pursuit because he felt that the vehicle was putting him, the female passengers, pedestrians, and other citizens in danger. The officer saw the vehicle continue to speed away before it made an abrupt right turn onto another street.
[¶7] After the officer returned to the police station, he determined that the vehicle identification number was registered to a woman, E.J. The officer called E.J., who told him that Dutton was the last person she knew who had the car. Several months earlier, E.J. had left the car, along with its keys, with Dutton, who was a mechanic. E.J. had also agreed to sell the car to Dutton's wife for $200. But, E.J. did not receive the $200, and she had been unable to contact Dutton for several months.
[¶8] After E.J. spoke to the officer, she called Dutton and told him that the officer had contacted her. Dutton became angry with her because he thought she had called the police about him. Nevertheless, E.J. gave Dutton the officer's contact information and tried to get Dutton to contact the officer.
[¶9] The officer then received several phone calls from an individual who identified himself as " Anton Dutton," but the officer was unable to persuade the caller to come to the police station.
[¶10] Eventually, the officer identified Dutton in a pretrial photo lineup as the driver of the car. Dutton had previously been served with notice that he was a habitual traffic offender and that his right to operate motor vehicles had been revoked.
[¶11] At trial, Dutton's defense was that he was not the driver of the vehicle.
II. Phone Statement
[¶12] We first consider whether the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call ...