Page 127
[Copyrighted Material Omitted]
Page 128
El
Paso County District Court No. 16CR4823, Honorable Robert L.
Lowrey, Judge
Daniel
H. May, District Attorney, Oliver Robinson, Deputy District
Attorney, Tanya A. Karimi, Deputy District Attorney, Colorado
Springs, Colorado, for Plaintiff-Appellant
No
Appearance for Defendant-Appellee
RULING APPROVED
WEBB,
JUDGE
[¶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 courts pretrial order dismissing all charges
against N.T.B.[1] 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 courts ruling.
I.
Background
[¶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.[2] The Center forwarded this information
to local police.
[¶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.[3] 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.
Page 129
[¶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
detectives 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.[4] 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.
II.
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
prosecutions 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, 269 P.3d 735. We review questions of law de ...