Paso County District Court No. 16CR4823 Honorable Robert L.
H. May, District Attorney, Oliver Robinson, Deputy District
Attorney, Tanya A. Karimi, Deputy District Attorney, Colorado
Springs, Colorado, for Plaintiff-Appellant
Appearance for Defendant-Appellee
1 Evidence stored in an account on a remote cloud server
raises novel questions of authentication and the
business-records exception to the hearsay rule. The district
attorney appeals the trial court's pretrial order
dismissing all charges against N.T.B. The court held that the
prosecutor failed to present a witness to authenticate
records of the cloud storage custodian and internet service
provider, which were necessary to link N.T.B. to sexually
exploitative material stored in the cloud. And even if the
prosecution could have authenticated these records, the court
held that they contained inadmissible hearsay. Because the
prosecutor provided no basis for admitting them under the
business-records exception, the trial court refused to admit
them. We agree with the district attorney that the prosecutor
proffered sufficient evidence of authenticity but reject his
contention that the documents were not hearsay. Therefore, we
approve the trial court's ruling.
2 Dropbox flagged a cloud-storage account that it suspected
contained child pornography. The company provided the
National Center for Missing and Exploited Children with a
video and an account identification number, an email address,
account activity log, and internet protocol (IP) address tied
to the upload. The Center forwarded this information to
3 The police served a search warrant on Dropbox, which
produced everything stored in the account, and viewed the
original video. They also viewed other videos that they
believed contained sexually exploitative material, along with
two still pictures of N.T.B., all of which were in the
account. The police traced the IP address to
Comcast, the internet service provider, which identified a
physical address for the internet account in response to a
search warrant. The account was owned by N.T.B.'s
then-girlfriend and his roommate.
4 Next, the police executed a search warrant on their shared
residence, where one detective interviewed N.T.B. He admitted
to owning a Dropbox account associated with his work email
address, which was the email address that Dropbox had
provided, and watching pornography that others shared with
him over Snapchat. But he did not confirm the account number.
5 The prosecution charged N.T.B. with three counts of sexual
exploitation of a child under section 18-6-403(3)(b.5),
C.R.S. 2019, based on his possession or control of
pornographic videos in the account.
6 Before jury selection on the morning of trial, N.T.B. moved
in limine to exclude all records obtained from Dropbox and
Comcast, but not the videos. He argued that these documents
were business records that contained hearsay, which would be
admissible only if authenticated under either CRE 803(6) or
by a certification that complied with CRE 902(11). The
prosecutor had neither endorsed a records custodian to
testify concerning the requirements of CRE 803(6) nor
provided an affidavit and notice under CRE 902(11).
7 The prosecutor responded that the records could be
authenticated under CRE 901(b)(1) and (4) based on testimony
from the investigating detective and distinctive information
that connected N.T.B. to the Dropbox account obtained through
the search warrants. He asserted that the records were not
hearsay because "[t]here [was] no declarant" and
that N.T.B. had admitted to owning a Dropbox account
associated with his work email address.
8 After hearing arguments from defense counsel and the
prosecutor, which included a proffer of the investigating
detective's anticipated testimony, and taking a short
recess to research the issue, the court ruled that the
records would not be admissible at trial. It explained that
"[t]here was no one to authenticate th[e]
documents"; additionally, the court held that these
documents were business records which contained
hearsay. And because the prosecutor had not
endorsed a custodian to testify nor provided an affidavit and
notice, the trial court would not admit them.
9 The prosecutor conceded that without this evidence, the
case could not be proven, and only twelve days remained
before the speedy trial deadline would lapse. Then the court
granted N.T.B.'s motion to dismiss and sealed the case.
Jurisdiction and Standard of Review
10 Section 16-12-102(1), C.R.S. 2019, allows the prosecution
to appeal a "final order" in a criminal case
"upon any question of law." An order that dismisses
one or more counts of a charging document before trial
constitutes a final order. Id.; see also People
v. Gabriesheski, 262 P.3d 653, 656-57 (Colo. 2011)
(requiring appeals under section 16-12-102(1) to comply with
the final judgment requirement of C.A.R. 1). And an
evidentiary ruling may be appealed if the trial court made
its ruling based on an allegedly erroneous interpretation of
the law. People v. Welsh, 176 P.3d 781, 791
(Colo.App. 2007); see also Gabriesheski, 262 P.3d at
658 ("[I]t is enough here that [the prosecution's
issues] posed questions of law and arose from decisions of a
criminal court that had become final, within the
contemplation of section 16-12-102(1) . . . .").
11 "Because we must always satisfy ourselves that we
have jurisdiction to hear an appeal, we may raise
jurisdictional defects sua sponte, regardless of whether the
parties have raised the issue." People v.
S.X.G., 2012 CO 5, ¶ 9. We review questions of law
de novo. See People v. Ross, 2019 COA 79,
¶¶ 2-10, 26.
12 The trial court held the Dropbox and Comcast records were
business records that it could not admit without testimony or
an affidavit from the custodians. See CRE 803(6),
902(11). The court made no findings of fact and did not weigh
the evidence proffered by the prosecutor. Instead it relied
entirely on its interpretation of the rules of evidence and
relevant case law. So, while the district attorney is
appealing an evidentiary ruling, that posture does not
preclude appellate jurisdiction under section 16-12-102(1)
when the question presented focuses on the proper application
of the controlling legal standard. Welsh, 176 P.3d
at 792; see People v. McLeod, 176 P.3d 75, 76 (Colo.
2008) (holding that a trial court's interpretation of the
rape-shield statute presented an appealable question of law
under section 16-12-102(1)); see also People v.
Medina, 25 P.3d 1216, 1223 (Colo. 2001) (whether a
statement constitutes hearsay is a legal conclusion).
13 In sum, we have jurisdiction to hear this appeal.
14 Principles of relevancy, authenticity, and hearsay govern
the admissibility of computer-generated records. People