Larimer County District Court No. 14CR1075 Honorable Stephen
J. Schapanski, Judge
Cynthia H. Coffman, Attorney General, Patrick A. Withers,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Meredith K. Rose,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Mark Anthony Jaeb, appeals his conviction of one
count of theft of property under section 18-4-401(1)(b) and
2(g), C.R.S. 2018, in an amount between $5000 and $20, 000 as
a class 5 felony. He separately appeals the portion of the
order directing restitution for damage to the stolen property
in the amount of $289.05. Because we conclude that the trial
court improperly admitted evidence of the value of the stolen
property, we reverse his conviction for the class 5 felony
and remand for entry of conviction on a lesser scheduled
offense. But because the prosecution presented adequate proof
that defendant's conduct was the proximate cause of the
damage to the property, we affirm the order of restitution.
2 The evidence admitted at trial showed that defendant
contracted to rent a U-Haul trailer for a period of
twenty-four hours in December 2013, but did not return the
trailer by the appointed time. About one month later, police
discovered the U-Haul trailer, along with several other
trailers, on a property that did not belong to defendant but
that contained many of his belongings. The People then
charged defendant with several theft crimes, though only the
rental of the U-Haul trailer is relevant to this appeal.
3 At trial, the prosecution called U-Haul's traffic
control manager for Northern Colorado as its primary witness.
She testified that she handled distribution contracts with
U-Haul's equipment reservation team and described
U-Haul's internal procedures in renting equipment.
Through her testimony, the prosecution offered, with no
objection, the twenty-four-hour contract between U-Haul and
defendant, along with a description of the trailer he had
rented. She testified the trailer was rented on or about
December 29, 2013, and was not timely returned.
4 The prosecution also presented the witness with proposed
Exhibit 9 as proof of the value of the stolen trailer. The
document was a notarized affidavit apparently signed by a
manager of the equipment recovery/records department at
U-Haul International, who was not called to testify,
attesting that the replacement cost of the trailer at issue
was $6427 and its actual cash value was $6748. The document
was signed July 1, 2015, approximately two months before
defendant's trial. A notation on the document below the
signature lines indicated that the document was
"requested by" the prosecution's witness.
5 The witness described the document as "our total loss
notice" and stated that that the document was kept in
the ordinary course of business at U-Haul and that it was a
kind of document she saw regularly and had access to.
However, she noted it was more often kept "in our
equipment recovery department."
6 Defense counsel objected to admission of the document on
the grounds of hearsay, lack of personal knowledge, and
authentication. After argument, the court found that the
document had "been testified to," which "would
make it admissible under 803(6)." The court also
concluded that the document could be authenticated under CRE
901 with testimony from a witness. The exhibit was admitted,
and defendant was ultimately convicted of one count of theft
- $5000 to $20, 000.
7 On appeal, defendant argues that the exhibit was
inadmissible hearsay and was admitted in violation of his
rights under the Confrontation Clauses. He also claims that
because the exhibit was the only evidence for the value of
the trailer, his conviction for theft - $5000 to $20, 000
must be reversed for insufficient evidence.
Whether Admission of the Affidavit Was Proper A. Preservation
and Standard of Review
8 At trial, defense counsel objected to the admission of
Exhibit 9 on grounds of hearsay, improper authentication, and
the witness's lack of personal knowledge. However, no
objection was made concerning defendant's rights under
the Confrontation Clauses of either the Federal or Colorado
9 We review the preserved hearsay claim for an abuse of
discretion under the harmless error standard, see People
v. Smalley, 2015 COA 140, ¶ 79, but review the
confrontation claim only for plain error, see People v.
Vigil, 127 P.3d 916, 929 (Colo. 2006). "Plain error
occurs only when an error so undermines the fundamental
fairness of the trial itself as to cast serious doubt on the
reliability of the jury's verdict."
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.
10 Hearsay is defined as any statement "other than one
made by the declarant while testifying at the trial . . .
offered in evidence to prove the truth of the matter
asserted." CRE 801(c). Such a statement is ordinarily
inadmissible unless it falls under one of the enumerated
exceptions to the hearsay rule. CRE 802.
11 One such exception is the business records exception. It
provides that a hearsay document is admissible if (1) it was
made at or near the time of the matters recorded in it; (2)
it was prepared by, or from information transmitted by, a
person with knowledge of the matters recorded; (3) the person
who recorded the document did so as part of a regularly
conducted business activity; (4) it was the regular practice
of that business activity to make such documents; and (5) the
document was retained and kept in the course of a regularly
conducted business activity. CRE 803(6); see also People
v. Flores-Lozano, 2016 COA 149 ¶ 13.
12 The People argue that another exception to the hearsay
rule is found in section 18-4-414(2), C.R.S. 2018, which
provides as follows:
For purposes of this part 4, in all cases where theft occurs,
evidence of the value of the thing involved may be
established through the sale price of other similar property
and may include, but shall not be limited to, testimony
regarding affixed labels and tags, signs, shelf tags, and
notices tending to indicate the price of the thing involved.
Hearsay evidence shall not be excluded in determining the
value of the thing involved.
13 The Federal and Colorado Constitutions grant defendants
the right to confront witnesses against them. U.S. Const.
amend. VI; Colo. Const. art. II, § 16. This right is
violated where the prosecution introduces testimonial hearsay
evidence, unless the declarant is unavailable and the
defendant had the prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68
(2004). A statement is testimonial if it was made or created
with the "primary purpose of creating an out-of-court