People v. Dominguez

          Rehearing Denied June 20, 2019

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[Copyrighted Material Omitted]

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          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,

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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

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of the messages on that screen are assertions. They are all inquiries or ...