City
and County of Denver District Court No. 13CR3362 Honorable
Michael J. Vallejos, Judge
Philip
J. Weiser, Attorney General, Jennifer L. Carty, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Jon W. Grevillius,
Deputy State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
LIPINSKY JUDGE.
¶
1 Defendant, Rayon D. Hamilton, appeals his conviction for
sexual assault. J.F., the victim, accused Hamilton of
drugging her at a bar, separating her from her friends,
taking her to an apartment without her consent while she was
unconscious, and sexually assaulting her.
¶
2 Hamilton contends that the district court erred by (1)
admitting hearsay to establish that neither Hamilton's
phone nor the victim's phone contained text messages
about which Hamilton had testified; (2) admitting evidence of
two other instances in which Hamilton had been accused of
sexual assault; (3) adding qualifying "factually
innocent" language to the acquittal instruction; and (4)
adding a reference to a prior conviction in the instruction
advising the jury that Hamilton had been acquitted of a prior
sexual assault charge.
¶
3 We agree with his first contention, reverse on that basis,
and remand for a new trial. We also agree that the district
court erred in adding a reference to Hamilton's prior
conviction to the acquittal instruction. We reject his
remaining contentions.
I.
Background
¶
4 While at bars with friends, J.F. ran into Hamilton, whom
she had met through an ex-boyfriend. Hamilton bought a round
of shots for J.F. and her friends. J.F. testified she thought
her "drink had drugs in it" because she could not
remember much after she had "taken the shot." J.F.
told the jury the next thing she remembered was waking up on
her stomach in an apartment, with her hands being held above
her head, and Hamilton was having sex with her.
¶
5 J.F. testified that she did not agree to have sexual
intercourse with Hamilton. According to her testimony at
trial, she kept saying "no" and tried to wiggle
away from him.
¶
6 Hamilton admitted to having sexual intercourse with J.F.
but claimed it had been consensual. He testified that J.F.
had been awake throughout the encounter.
¶
7 The district court instructed the jury on one count of
second degree kidnapping, two counts of sexual assault, and
one count of distribution of a controlled substance. Hamilton
was convicted on one of the sexual assault counts and the
distribution count and was acquitted on the remaining counts.
II.
Admissibility of Detective Slay's Testimony Concerning
the Phone Reports
¶
8 Hamilton told the investigating detective, Bryan Slay, that
J.F. had sent him multiple texts while they were drinking
together at the bars. He claimed that J.F. had also sent him
texts the day after the alleged sexual assault. Hamilton gave
similar testimony at trial.
¶
9 Detective Slay testified that police department personnel
downloaded the contents of Hamilton's and J.F.'s
phones and generated reports (the Reports) reflecting the
phones' contents. At trial, the prosecutor did not seek
to introduce the Reports into evidence or call as witnesses
the police department employees who had examined the phones
or generated the Reports. Instead, Detective Slay testified
that, based on his review of the Reports, neither phone
contained text messages from J.F. to Hamilton.
¶
10 Hamilton contends that Detective Slay's testimony
about the contents of the Reports was hearsay, the admission
of which violated CRE 803(7) and 803(10) and his rights under
the Confrontation Clauses of the United States and Colorado
Constitutions. He argues that Detective Slay's testimony
unfairly prejudiced him because it contradicted his own
testimony that J.F. had texted him both the night of the
alleged sexual assault and the next morning.
¶
11 Analysis of the admissibility of Detective Slay's
testimony concerning the Reports requires us to determine
whether the Reports were inadmissible hearsay, whether
Detective Slay's testimony constituted a second layer of
inadmissible hearsay, and whether the prosecutor established
the reliability and authenticity of the Reports.
A. The
Hearsay Issues
1.
Standard of Review
¶
12 We review a trial court's evidentiary rulings for an
abuse of discretion. People v. Ibarra, 849 P.2d 33,
38 (Colo. 1993). However, a trial court's decision on
whether a statement constitutes hearsay is a legal
conclusion, which we review de novo. People v.
Medina, 25 P.3d 1216, 1223 (Colo. 2001); see also
Dutch v. United States, 997 A.2d 685, 689 (D.C. 2010)
(concluding that the determination of whether a statement
falls under an exception to the hearsay rule is a legal
conclusion).
¶
13 The harmless error standard applies to review of trial
errors of nonconstitutional dimension preserved by objection.
Hagos v. People, 2012 CO 63, ¶ 12, 288
P.3d 116, 119. Such an error is harmless where "there is
no reasonable possibility that it contributed to the
defendant's conviction." Pernell v. People,
2018 CO 13, ¶ 22, 411 P.3d 669, 673; People v.
Cohen, 2019 COA 38, ¶ 11, ___P.3d ___, ___. Under
this standard, reversal is required only if the error
"substantially influenced the verdict or affected the
fairness of the trial proceedings." Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986).
¶
14 We review unpreserved trial errors for plain error.
Hagos, ¶ 14, 288 P.3d at 120. "Plain error
is obvious and substantial." Id. We reverse
under plain error if the error "so undermined the
fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of
conviction." Id. (quoting People
v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
2.
Preservation of Hamilton's Arguments Regarding Detective
Slay's Testimony
¶
15 The defense did not object to the prosecutor's two
questions to Detective Slay regarding the contents of
Hamilton's phone. Hamilton, however, directs us to two
other places in the record where he asserts he preserved this
issue.
¶
16 First, during Detective Slay's cross-examination,
defense counsel asked, "Detective, he just asked you a
question about texts on [J.F.'s] phone" and
"[w]ere you testifying by your personal knowledge or
some report that was given to you that you read?" After
Detective Slay responded that his testimony was based on
"[a] report from that phone being downloaded,"
defense counsel "move[d] to strike that testimony as the
foundation is hearsay." Defense counsel argued that the
prosecutor could have "[laid] the foundation to admit
the text messages from [J.F.'s] phone, but they chose not
to. Now they are trying to . . . admit hearsay statements
from the detective about a report that he read." But
defense counsel's objection concerned Detective
Slay's testimony regarding the contents of J.F.'s
phone and not the contents of Hamilton's phone.
¶
17 Second, Hamilton asserts that his counsel preserved his
argument regarding the contents of his phone during a bench
conference addressing a juror's proposed questions to
Detective Slay: "Were there texts on [J.F.'s] phone
to [Hamilton]? . . . Does the phone company have no record of
the texts? Did you investigate with [Hamilton's] and
[J.F.'s] phone companies?" Defense counsel objected
to the questions, stating, "[w]ere there texts on
[J.F.'s] phone to [Hamilton]? I object. That's the
same objection I made the last time." Like the earlier
objection, this objection addressed evidence of the contents
of J.F.'s phone.
¶
18 We therefore conclude that Hamilton did not preserve his
argument that the district court erred in admitting Detective
Slay's testimony regarding the contents of Hamilton's
phone, but preserved his argument that the court erred in
allowing Detective Slay to testify regarding the contents of
J.F.'s phone.
3. The
Reports Were Hearsay
a. The
Prosecutor Introduced the Content of the Reports into
Evidence to Prove the Truth of the Matter Asserted
¶
19 Hearsay is "a statement other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted."
CRE 801(c). Hearsay is inadmissible except as provided by the
Colorado Rules of Evidence or other applicable statutes or
rules. CRE 802; People v. Buckner, 228 P.3d 245, 249
(Colo.App. 2009).
¶
20 A declarant is "a person who makes a statement."
CRE 801(b). A "statement" is either "(1) an
oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him to be communicative."
CRE 801(a).
¶
21 During rebuttal, the prosecutor introduced the content of
the Reports through Detective Slay's testimony. He
testified that he had "the tech guys work on [the
phone]," and that he was able to view "the report
that [he] had the technical people run." Detective Slay
then said that, based on his review of the Reports,
Hamilton's and J.F.'s phones did not contain any
texts between Hamilton and J.F.
¶
22 We disagree with the People's argument that the
prosecutor did not introduce the content of the Reports into
evidence for the truth of the matter asserted. In
characterizing the content of the Reports, Detective Slay was
not merely providing a "personal observation about the
existence of any text messages" or explaining "what
actions the detective took as part of his
investigation." The prosecutor went far beyond merely
asking Detective Slay whether he had obtained Hamilton's
and J.F.'s phones and whether the police had analyzed
them.
¶
23 Rather, his testimony focused on the key content of the
Reports - their alleged assertion that the phones did not
contain the text messages from J.F. to Hamilton about which
Hamilton had testified. The prosecutor specifically asked
Detective Slay whether the Reports showed that J.F. had
texted Hamilton on the relevant days. This question elicited
testimony regarding the truth of the matters asserted in the
Reports.
b. The
Prosecutor Did Not Establish that the Reports Were
Machine-Generated Without Human Input or Interpretation
¶
24 Even if the prosecutor introduced the Reports into
evidence to prove the truth of their contents, the Reports
would not be hearsay if a machine generated them
automatically. Such records are not hearsay because no
"person" or "declarant" made a
communicative "statement" within the meaning of CRE
801. Buckner, 228 P.3d at 250. As a division of this
court noted in Buckner, this reasoning is in accord
with decisions from other jurisdictions applying
substantially similar hearsay rules. Id. (citing
United States v. Hamilton, 413 F.3d 1138, 1142-43
(10th Cir. 2005)); see United States v. Washington,
498 F.3d 225, 231 (4th Cir. 2007) (concluding that only a
person can make a statement and nothing "said" by a
machine is hearsay); Hamilton, 413 F.3d at 1142-43
(holding information automatically generated by a computer
was not hearsay because there was no "declarant" or
"statement" involved); United States v.
Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (deciding
that an automatically generated time stamp was not hearsay
because it was not uttered by a person). See generally
People v. Marciano, 2014 COA 92M-2, ¶ 28, 411 P.3d
831, 838 (in deciding cases involving the Colorado Rules of
Evidence, we consider instructive cases from other
jurisdictions interpreting analogous rules).
¶
25 The Reports were machine-generated because
• the operator made no statements of any kind;
• the operator did not say or write the information the
machine generated;
• the operator simply operated the machine;
• the machine used a common scientific and technological
process;
• the conclusion of the machine-generated report was
drawn solely from the machine's data; and
• the source of the data was independent of human
observation or reporting.
See Washington, 498 F.3d at 230; Adam Wolfson, Note,
"Electronic Fingerprints": Doing Away with the
Conception of Computer-Generated Records as Hearsay, 104
Mich. L. Rev. 151, 159 (2005) ("[H]uman interaction
often triggers the computer processes that create the
records; however, the crucial factor is whether the record is
a mark of computer activity or if it is the
electronically-saved statements of a human user.").
¶
26 A computer-generated record constitutes hearsay, however,
when its creation involves human input or interpretation.
See United States v. Cestnik, 36 F.3d 904, 907 (10th
Cir. 1994) (concluding that money transfer records
constituted hearsay because an employee created them by
entering information into the computer); see also Baker
v. State, 117 A.3d 676, 683 (Md. Ct. Spec. App. 2015)
(concluding that call records not generated solely by the
internal operations of the computer, but that likely involved
a human's data entry, constituted hearsay); cf.
Cranston v. State, 936 N.E.2d 342, 344 (Ind.Ct.App.
2010) (concluding that evidence tickets produced by a
chemical breath test machine are not hearsay because they do
not involve any material human intervention). For these
reasons, we hold that the district court erred in determining
that the Reports were not hearsay.
4.
Detective Slay's Testimony Was Also Hearsay
¶
27 We next consider whether Detective Slay's testimony
regarding the Reports was itself hearsay. Hearsay included
within hearsay is inadmissible unless each part of the
combined statements conforms with an exception to the hearsay
rule. CRE 805. "Where a statement contains multiple
layers of potential hearsay, the court must analyze each
layer separately to determine whether it falls within a
recognized hearsay exception or exclusion." People
v. Phillips, 2012 COA 176, ¶ 101, 315 P.3d 136,
160.
¶
28 "For hearsay within hearsay to be admitted as
evidence, a hearsay exception must apply to each link of the
chain." Regan-Touhy v. Walgreen Co., 526 F.3d
641, 650 (10th Cir. 2008) (interpreting analogous federal
rule).
¶
29 Rather than offer the Reports themselves into evidence,
the prosecutor put Detective Slay on the witness stand to
tell the jury what the Reports said. He explained that
"[t]he people that we have downloaded that information
in our police technical unit" and that he was
characterizing "[a] report from that phone being
downloaded."
¶
30 Detective Slay's testimony about the Reports added a
second layer of hearsay. See CRE 805. His testimony
was hearsay because he described to the jury the content of
the Reports to prove the truth of their content. See
CRE 801(c). For this reason, absent the application of a
hearsay exception, Detective Slay could not have testified
about the contents of the Reports, even if the Reports
themselves were admissible. See People v. Raffaelli,
701 P.2d 881, 884 (Colo.App. 1985) (holding that
detective's or caseworker's testimony regarding the
content of a doctor's report was inadmissible hearsay
under CRE 802 and CRE 805). But the People do not argue that
any hearsay exception applies, and the application of any
such exception is not otherwise apparent to us.
B. The
Reliability and Authenticity of the Reports
¶
31 In addition to reviewing whether the Reports and Detective
Slay's testimony regarding the Reports were hearsay, we
also must address whether the prosecutor established their
reliability and authenticity.
¶
32 An analysis of the admissibility of a machine-generated
record must consider the reliability and accuracy of the
process used to create and obtain the underlying data, and
whether the report is authentic. See People v.
Huehn, 53 P.3d 733, 736 (Colo.App. 2002) (explaining
that the rules of relevancy, authentication, and hearsay
govern admissibility of a computer printout); see also
Washington, 498 F.3d at 231 ("Any concerns about
the reliability of . . . machine-generated information is
addressed through the process of authentication not by
hearsay . . . ."); Baker, 117 A.3d at 683
(concluding that the admissibility ...