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People v. Flores-Lozano

Court of Appeals of Colorado, Fifth Division

October 20, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Maria Guadalupe Flores-Lozano, Defendant-Appellant.

         Arapahoe County District Court No. 12CR1241 Honorable Elizabeth Beebe Volz, Judge


          Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

          BERGER JUDGE.


         ¶ 1 The principal question presented in this case is whether a computer spreadsheet, prepared by an in-house loss prevention director of the defendant's employer, and designed to determine if the defendant, Maria Guadalupe Flores-Lozano, committed theft and in what amount, qualified for admission into evidence under the business records exception to the hearsay rule. We hold that the trial court did not abuse its discretion in admitting the spreadsheet and affirm Flores-Lozano's conviction of theft of more than $1000 but less than $20, 000.

         I. Background

         ¶ 2 Flores-Lozano was a shift manager at a fast food restaurant. The restaurant had a point-of-sale (POS) system that stored information associated with every sale, a business analytics system that analyzed trends within the POS system, and a video recording system.

         ¶ 3 One of the restaurant chain's loss prevention directors, using the business analytics and video systems, noticed that Flores-Lozano had been giving an atypical number of discounts to customers. He thought that some of the discounts were legitimate. But he also noticed a suspicious pattern: Flores-Lozano had discounted the gross amounts of sales down to a few cents many times.

         ¶ 4 It appeared to the loss prevention director that, for those transactions where Flores-Lozano was discounting almost the entire amount of the sale, she was pocketing the difference between the amount of the cash taken from the customer and the after-discount amount of the sale reflected by the POS system.

         ¶ 5 Mining the data in the POS system, the loss prevention director looked at every discount Flores-Lozano had given over a seven-and-a-half-month period. He copied the transactions from the POS system in which he suspected Flores-Lozano had improperly discounted the sale and pasted them into a separate spreadsheet that he created. The spreadsheet reflected approximately 4400 transactions in which Flores-Lozano had discounted almost the entire amount of the sale. The director calculated the total aggregate amount of these discounts, and thus of the suspected thefts, to be $23, 320.01.

         ¶ 6 The loss prevention director confronted Flores-Lozano, and showed her the spreadsheet. She admitted that she had been stealing from the company. He then showed her photographs, which he had culled from the video system, and the related receipts from fifty-four particular instances in which Flores-Lozano had discounted sales to a few cents. She admitted that she had stolen from the restaurant in each of these incidents. After completion of his internal investigation, he reported the results to his superiors, and they directed him to refer the matter to the police.

         ¶ 7 The People charged Flores-Lozano with theft of more than $20, 000. The sole contested issue at trial was the amount of the theft. Flores-Lozano argued to the jury that it should only convict her of theft for the specific instances in which she had admitted her guilt. These instances of theft amounted to less than $500.

         ¶ 8 The jury rejected both the People's and Flores-Lozano's positions regarding the amount of the thefts and instead found Flores-Lozano guilty of the lesser included offense of theft of $1000 or more but less than $20, 000.

         II. The Spreadsheet Was Admissible Under The Business Records Exception To The Hearsay Rule

         ¶ 9 The first question is whether the spreadsheet contained hearsay. We conclude that it did, but that it was admissible under the business records exception to the hearsay rule. CRE 803(6).

         ¶ 10 "'Hearsay' is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). "Hearsay is not admissible except as provided by [the rules of evidence] or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado." CRE 802.

         ¶ 11 The spreadsheet was not a simple regurgitation of electronically stored information created by the victim's computer systems which, under at least some circumstances, might not constitute hearsay. In People v. Buckner, 228 P.3d 245, 250 (Colo.App. 2009), a division of this court observed that information automatically generated by a machine is not hearsay because it is not a "statement" made by a "declarant" within the meaning of CRE 801. But here the information was not automatically generated.

         ¶ 12 The record shows that the loss prevention director applied his professional judgment to sort, include, and exclude electronically stored information for the precise purpose of creating a customized spreadsheet to determine if the defendant had stolen from the victim and, if so, in what amount. The resulting work product, an out-of-court statement offered for the truth of the matter asserted (that the ...

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