Rehearing Denied August 15, 2019
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and County of Denver District Court No. 13CR3362, Honorable
Michael J. Vallejos, Judge
J. Weiser, Attorney General, Jennifer L. Carty, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jon W. Grevillius,
Deputy State Public Defender, Denver, Colorado, for
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 Hamiltons
phone nor the victims 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
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 Hamiltons
prior conviction to the acquittal instruction. We reject his
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.
Admissibility of Detective Slays Testimony Concerning the
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 Hamiltons 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 Slays
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 Slays
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
Slays testimony concerning the Reports requires us to
determine whether the Reports were inadmissible hearsay,
Detective Slays testimony constituted a second layer of
inadmissible hearsay, and whether the prosecutor established
the reliability and authenticity of the Reports.
Standard of Review
12] We review a trial courts evidentiary rulings
for an abuse of discretion. People v. Ibarra, 849
P.2d 33, 38 (Colo. 1993). However, a trial courts 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
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
defendants conviction." Pernell v. People,
2018 CO 13, ¶ 22, 411 P.3d 669, 673; People v.
Cohen, 2019 COA 38, ¶ 11, 440 P.3d 1256. 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)).
Preservation of Hamiltons Arguments Regarding Detective
15] The defense did not object to the prosecutors
two questions to Detective Slay regarding the contents of
Hamiltons phone. Hamilton, however, directs us to two other
places in the record where he asserts he preserved this
16] First, during Detective Slays
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
counsels objection concerned Detective Slays testimony
regarding the contents of J.F.s phone and not the contents
of Hamiltons phone.
17] Second, Hamilton asserts that his counsel
preserved his argument regarding the contents of his phone
during a bench conference addressing a jurors 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 [Hamiltons]
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. Thats 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 Slays testimony regarding the contents
of Hamiltons phone, but preserved his argument that the
court erred in allowing Detective Slay to testify regarding
the contents of J.F.s phone.
Reports Were Hearsay
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.Div.
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 Slays 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,
Hamiltons and J.F.s phones did not contain any texts
between Hamilton and J.F.
22] We disagree with the Peoples 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 Hamiltons 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.
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
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
• the operator simply operated the machine;
• the machine used a common scientific and technological
• the conclusion of the machine-generated report was
drawn solely from the machines 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
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, 223
Md.App. 750, 117 A.3d 676, 683 (2015) (concluding that call
records not generated solely by the internal operations of
the computer, but that likely involved a humans 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.
Detective Slays Testimony Was Also Hearsay
27] We next consider whether Detective Slays
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