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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