Arapahoe County District Court No. 11CR2411, Honorable Marilyn Leonard Antrim, Judge.
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Karen Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
¶ 1 In our increasingly computerized world, attorneys often present video depictions of events at trial to explain how those events occurred. This appeal involves the question whether three video depictions were admissible in a criminal trial. To answer this question, we must decide whether the videos were "animations" or "simulations, " which are two terms of art.
¶ 2 As a general matter, an animation is based on information that an expert has gathered and the opinions that the expert has reached based on that information. The animation then depicts the expert's opinion of how the event occurred.
¶ 3 A simulation is different. A computer program does the work of reaching the opinion based on the information, or it at least assists the expert in figuring out what his or her opinion should be. The simulation then depicts how the event actually occurred based wholly, or at least in part, on the computer's analysis.
¶ 4 At the end of the trial in this case, a jury convicted defendant, Joseph Douglas, of leaving the scene of an accident, failure to report an accident, and careless driving. He appeals the judgment of conviction and the trial court's order that required him to pay an insurer $37, 717.28 in restitution.
¶ 5 Defendant contends that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile-bicycle collision. He asserts that they were simulations, and that the prosecution did not lay an adequate foundation to support the court's decision to admit them. We disagree because we conclude that the videos were animations and that the prosecution laid a sufficient foundation.
¶ 6 We therefore affirm the judgment of conviction. We also affirm the trial court's restitution order.
I. Background and Procedural History
¶ 7 In August 2011, defendant was driving his car on a two-lane, rural road around dusk on a windy day. He took his eyes off the road for a few seconds to look at his radio. The passenger side of his car struck a bicyclist who was riding in the same direction on the side of the road. She flew through the air for a distance, and she landed in a ditch, which was filled with chest-high vegetation.
¶ 8 The collision and the resulting fall broke the bicyclist's leg and sprained her wrist. She managed to climb out of the ditch, and she then called for emergency assistance on her cell phone.
¶ 9 Defendant drove away. He later claimed that he had not seen the bicyclist. He had felt the side of his car strike her, but, when he stopped to look around, he did not see her or her bicycle. So he assumed that his car had struck a deer.
¶ 10 As is relevant to this appeal, the prosecution charged defendant with leaving the scene of an accident, failure to report an accident, and careless driving resulting in injury.
¶ 11 The prosecution informed defendant that it intended to introduce three video depictions of the collision at trial. A state trooper who was an accident reconstruction expert had prepared them. The depictions showed the collision from different angles.
¶ 12 Defendant filed a motion to exclude the three videos. Relying on CRE 702 and People v. Shreck, 22 P.3d 68 (Colo. 2001), the motion asserted that the videos were simulations and that they were not admissible because they were based on (1) "unreliable analysis, unreliable data, " and an "unreliable program"; and (2) "only partial[ly] self-reported data." Alternatively, defendant contended that even if the videos were animations, they were nonetheless inadmissible because they did not fairly and accurately depict the collision.
¶ 13 The trial court held an evidentiary hearing. The prosecutor asserted that the videos were animations. Defense counsel responded that her "main concern" was that the facts depicted in the videos were in dispute. She said that the "problem is whether [the videos were] . . . fair and accurate representation of what happened." (As we will explain below, part of the foundation for admitting animations is that they fairly and accurately depict an event.) She reiterated that she also thought that the videos were simulations.
¶ 14 The prosecutor conceded that the videos "entail[ed] a fair amount of math and science." But, the prosecutor's argument continued, they were animations because they were based on the measurements that the trooper had taken at the scene of the collision, information that some witnesses had provided to him, and calculations that he had performed before he used a computer to create the videos.
¶ 15 The trial court decided that the videos were animations and that it would allow the jury to watch them at trial. The court also found that (1) they were relevant because they would provide the jury with visual depictions of the collision and because they showed the relative positions of the car and the bicycle on the road; (2) they were fair and accurate depictions of the collision; (3) any discrepancies between the videos and other evidence went to their weight, not to their admissibility; and (4) the probative value of the videos was not substantially outweighed by any prejudice that defendant might suffer if the jury watched them.
¶ 16 When the prosecutor showed the videos at trial, the court gave the jury a limiting instruction. The instruction stated that the videos represented the trooper's opinion about how the collision had occurred. The court also limited the jury to watching the videos twice: once during the trooper's testimony and once during the jury's deliberations.
II. The Videos Were Animations
¶ 17 Defendant asserts that the videos were simulations and that they were scientific evidence. The prosecution therefore had to show that they were admissible under the test found in CRE 702 and Shreck, 22 P.3d at 82-83.
¶ 18 Alternatively, defendant contends that even if the videos were animations, the court should not have admitted them because they did not meet the necessary foundational requirements.
¶ 19 We disagree with both of these contentions.
A. Standard of Review
¶ 20 We review a trial court's evidentiary rulings for abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). We will not reverse an evidentiary ruling unless the decision was manifestly arbitrary, unreasonable, or unfair, or if it was based on an erroneous ...