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People v. Dominguez

Court of Appeals of Colorado, Seventh Division

May 23, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Brian Anthony Dominguez, Defendant-Appellant.

          Jefferson County District Court No. 14CR1695 Honorable Randall C. Arp, Judge

          Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          DUNN JUDGE

         ¶ 1 Brian Anthony Dominguez appeals the judgment of conviction entered after a jury found him guilty of possession of a controlled substance with intent to distribute, possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint. He also appeals his sentence. We affirm.

         I. Background

         ¶ 2 While outside the home of his daughter's grandmother, Dominguez had a verbal altercation with the grandmother's relatives. One of the relatives called 911, and Dominguez drove away at a high speed.

         ¶ 3 Agent Angela Garza later spotted Dominguez's truck. After following it for a short time, she attempted to initiate a traffic stop. Dominguez accelerated away, and a high-speed chase ensued. Agent Garza and other police agents ultimately stopped their pursuit. But later, Agent Garza located Dominguez's abandoned truck. Police agents found Dominguez hiding nearby and arrested him.

         ¶ 4 Agent Ryan Carmichael then searched Dominguez's truck and discovered the following items:

• a large bag containing 208 grams (almost half a pound) of methamphetamine;
• a small bag containing 0.29 grams of methamphetamine;
• a small bag containing 0.47 grams of methamphetamine;
• a third small bag, which was empty;
• a small spoon "that appeared . . . to be the size used to fill these smaller baggies";
• an electronic scale with a "white substance" on it, which was similar in color to the recovered methamphetamine;
• a cell phone;
• a glass smoking pipe; and
• used and unused syringes.

         ¶ 5 The prosecution charged Dominguez with possession of a controlled substance with intent to distribute, possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint.[1] At trial, Dominguez conceded all but the possession of a controlled substance with intent to distribute charge. The jury found Dominguez guilty of each count, and the court sentenced him to twelve years in prison.

         II. Text Messages

         ¶ 6 Dominguez primarily contends the trial court erred in admitting text messages discovered on his cell phone because (1) they were inadmissible hearsay; (2) their admission violated his right to due process; and (3) they should have been excluded under CRE 403. These errors, he argues, require the reversal of his possession of a controlled substance with intent to distribute conviction. We consider and reject each contention.

         A. Additional Facts

         ¶ 7 Agent Carmichael testified that when he took the cell phone from Dominguez's truck and examined it, he saw text messages that "concern[ed] [him]." He "relayed what [he] saw to . . . agents on the West Metro Drug Task Force."

         ¶ 8 Agent Adrian Alderete, a member of the West Metro Drug Task Force, later testified that he executed a search warrant on the cell phone and discovered a series of text messages sent to it over a span of approximately two hours near the time of Dominguez's arrest. The prosecutor moved to admit a photograph of Dominguez's cell phone showing the following text messages:

• "[c]an you do 2 for 1500 if I got all of it";
• "[y]our voicemail is full";
• "[c]an you do that for me";
• "[c]all me please"; and
• "[c]an you do 2 for 1600."

         ¶ 9 Dominguez's counsel objected, contending that the text messages were inadmissible hearsay. In response, the prosecutor argued that they were "not . . . statement[s] at all" but "in the nature of . . . verbal act[s]," so "hearsay doesn't apply."

         ¶ 10 The court overruled the objection, concluding that the text messages were not hearsay. It explained, "While arguably the texts are communicative in nature and an inference can be drawn from them, the Court would find that they are not assertions. None of the messages on that screen are assertions. They are all inquiries or questions."

         B. Hearsay

         ¶ 11 Dominguez says this was reversible error. He argues that the text messages constituted inadmissible hearsay because they were offered for the truth of the matter "impliedly asserted" in them - that he "was a drug dealer."[2] We disagree.

         1. Standard of Review

         ¶ 12 The parties agree that Dominguez preserved this issue but dispute the standard by which we review it. Dominguez argues for de novo review, contending that "whether evidence is hearsay presents a legal question." The People respond that whether the court erred in admitting evidence is reviewed for an abuse of discretion.

         ¶ 13 The People are correct that we review a trial court's evidentiary ruling for an abuse of discretion. People v. Phillips, 2012 COA 176, ¶ 63; see also People v. Cohen, 2019 COA 38, ¶ 10. In determining if the court abused its discretion, however, we not only consider whether the court's ruling was manifestly arbitrary, unreasonable, or unfair, but also whether its ruling was contrary to the law. People v. Jackson, 2018 COA 79, ¶ 47. This latter question does not require deference to the trial court. Instead, the trial court's application or interpretation of the law when making an evidentiary ruling is a question of law we review de novo. See People ...


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