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 daughters grandmother,
Dominguez had a verbal altercation with the grandmothers
relatives. One of the relatives called 911, and Dominguez
drove away at a high speed.
[¶3]
Agent Angela Garza later spotted Dominguezs 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
Dominguezs abandoned truck. Police agents found Dominguez
hiding nearby and arrested him.
[¶4]
Agent Ryan Carmichael then searched Dominguezs 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 Dominguezs 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
Dominguezs arrest. The prosecutor moved to admit a
photograph of Dominguezs 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]
Dominguezs 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 doesnt 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 ...