People v. N.T.B.

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          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 court’s 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 court’s 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.

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         [¶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.^[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 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, 269 P.3d 735. We review questions of law de ...