The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 15, 2018
2018COA157
Nos. 15CA0342 & 15CA0531 Peo in Interest of A.C.E-D. — Juvenile Court — Delinquency — Competency to Proceed
A division of the court of appeals holds that the
then-applicable competency statute for juveniles, section
19-2-1301(2), C.R.S. 2015, is neither facially unconstitutional nor
unconstitutional as applied because it incorporated the definition of
“incompetent to proceed” for adults in criminal proceedings set out
in section 16-8.5-101(11), C.R.S. 2015. COLORADO COURT OF APPEALS 2018COA157
Court of Appeals Nos. 15CA0342 & 15CA0531 Jefferson County District Court Nos. 13JD285 & 13JD424 Honorable Ann Gail Meinster, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.C.E-D.,
Juvenile-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE WEBB Harris and Welling, JJ., concur
Announced November 15, 2018
Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Law Office of Diana M. Richett, Diana M. Richett, Lakewood, Colorado, for Juvenile-Appellant ¶1 Is the previous iteration of the competency statute for
juveniles, section 19-2-1301(2), C.R.S. 2015, facially
unconstitutional or unconstitutional as applied because it
incorporated the definition of “incompetent to proceed” for adults in
criminal proceedings set out in section 16-8.5-101(11), C.R.S.
2015? The juvenile, A.C.E-D., raised this novel question in seeking
dismissal of the misdemeanor theft and harassment charges
against him, asserting these statutes did not allow the court to
consider A.C.E-D.’s age and maturity. The trial court rejected his
constitutional arguments, found him competent to proceed, and
convicted him of both charges, resulting in his adjudication and
sentencing.
¶2 On appeal, A.C.E-D. challenges the adjudication on the same
constitutional grounds. Alternatively, he asserts that the juvenile
court abused its discretion in finding him competent. He also
asserts evidentiary error in authenticating Facebook messages that
supposedly constituted harassment and a one-year discrepancy
between the dates of those messages as charged in the amended
petition and as proven. The Attorney General concedes
preservation of the constitutional and evidentiary contentions.
1 ¶3 We affirm.
I. Background
¶4 Following a complaint of shoplifting, police officers contacted
A.C.E-D. He confessed, led them to the merchandise, and was
charged with misdemeanor theft. In a separate case, A.C.E-D. was
charged with misdemeanor harassment based on Facebook
messages sent to his ex-girlfriend.
¶5 In both cases, A.C.E-D. pleaded guilty. But before sentencing,
he moved to determine competency and later moved to withdraw his
guilty pleas. Without addressing the pleas, the trial court ordered a
competency evaluation. A psychologist evaluated A.C.E-D. and
recorded his findings in a report. After receiving the psychologist’s
report, the court made a preliminary finding of competency. Then
A.C.E-D. requested a competency hearing.
¶6 Before that hearing was held, A.C.E-D. moved to dismiss the
charges based on a facial constitutional challenge to the juvenile
competency statute. The court denied the facial challenge. At the
competency hearing, the court also rejected an as-applied challenge
and found A.C.E-D. competent to proceed based on the
psychologist’s testimony and his report.
2 ¶7 Still, the court allowed A.C.E-D. to withdraw his guilty pleas
and conducted a bench trial. The court found A.C.E-D. guilty of the
charges and adjudicated him a juvenile delinquent.
II. The Juvenile Competency Statute Is Constitutional
A. Standard of Review
¶8 Constitutional challenges are reviewed de novo. Coffman v.
Williamson, 2015 CO 35, ¶ 13. Because a statute is presumed
constitutional, the party challenging it must prove
unconstitutionality beyond a reasonable doubt. Anderson v. Colo.
Dep’t of Pers., 756 P.2d 969, 975 (Colo. 1988). A successful facial
challenge must show that “the law is unconstitutional in all its
applications.” Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
¶9 An as-applied constitutional challenge succeeds if the statute
is unconstitutional “under the circumstances in which the [plaintiff]
has acted or proposes to act.” Developmental Pathways v. Ritter,
178 P.3d 524, 534 (Colo. 2008) (quoting Sanger v. Dennis, 148 P.3d
404, 410 (Colo. App. 2006)). Unlike a successful challenge to facial
validity, the result of “holding a statute unconstitutional as applied
3 is to prevent its future application in a similar context, but not to
render it utterly inoperative.” Id. (quoting Sanger, 148 P.3d at 410).
B. Law
¶ 10 Under the Children’s Code, a juvenile “shall not be tried or
sentenced if the juvenile is incompetent to proceed, as defined in
section 16-8.5-101(11), C.R.S. . . . .” § 19-2-1301(2). Under that
statute,
“[i]ncompetent to proceed” means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.
§ 16-8.5-101(11).
¶ 11 The party asserting the juvenile’s incompetence bears the
burden of submitting evidence, and bears the burden of persuasion
by a preponderance of the evidence. § 19-2-1302(2).
4 C. Application
1. Facial Challenge
¶ 12 A.C.E-D. makes three arguments why section 19-2-1301(2) is
facially invalid: using the adult incompetency standard for juveniles
violates their right to due process; the statute’s requirement limiting
juvenile incompetency to a finding of a mental or developmental
disability is inconsistent with the test in Dusky v. United States, 362
U.S. 402, 402 (1960); and the statute violates due process because
it places the burdens of submitting evidence and persuasion on
juveniles. We address, and reject, each argument in turn.
¶ 13 A.C.E-D. first argues that because the United States
Constitution offers greater protections to juveniles in some
circumstances, an incompetency standard that applies equally to
both juveniles and adults is unconstitutional. But A.C.E-D. does
not cite, nor are we aware of, any Supreme Court or Colorado
authority requiring different competency standards for juveniles.
¶ 14 Instead, A.C.E-D. cites to Supreme Court cases applying the
Eighth Amendment to juveniles. But these cases are uninformative
because they did not address juveniles’ competency to stand trial.
Rather, they addressed the constitutionality of executing a
5 defendant for a homicide committed as a juvenile or sentencing a
juvenile to life in prison without the possibility of parole. See Miller
v. Alabama, 567 U.S. 460, 479 (2012) (mandatory sentence of life
without the possibility of parole); Roper v. Simmons, 543 U.S. 551,
578 (2005) (death penalty).
¶ 15 In both cases, the Court recognized important differences
between children and adults: children have a diminished sense of
responsibility, are more vulnerable to peer pressure, and have
greater prospects for reform. See Miller, 567 U.S. at 471-74; Roper,
543 U.S. at 569-70. While these differences are reasons for sparing
juveniles from the harshest of criminal punishments, they do not
address juveniles’ ability to assist their attorneys or comprehend
the meaning of an adjudication proceeding. A.C.E-D. admits as
much in his reply brief, conceding that he is not suggesting the
Eighth Amendment applies to juvenile competency evaluations.
And in any event, the trial of an incompetent defendant involves the
Due Process Clause of the Fourteenth Amendment. Pate v.
Robinson, 383 U.S. 375, 378 (1966); accord People v. Zapotocky,
869 P.2d 1234, 1237 (Colo. 1994). Unsurprisingly, A.C.E-D. next
argues that the statute violates the due process rights of juveniles.
6 ¶ 16 In some circumstances, especially police interrogations and
the waiver of certain rights, courts have considered youth and all its
associated circumstances when deciding due process requirements.
See, e.g., Gallegos v. Colorado, 370 U.S. 49, 55 (1962) (confessions
to police); Haley v. Ohio, 332 U.S. 596, 600-01 (1948) (same); People
in Interest of M.R.J., 633 P.2d 474, 476-77 (Colo. 1981) (same);
People in Interest of J.F.C., 660 P.2d 7, 9 (Colo. App. 1982) (guilty
pleas and waiver of right to trial). But A.C.E-D. does not explain
why the factors that warrant special due process protections for
juveniles under police interrogation or when waiving certain rights
necessitate different competency standards for juveniles than for
adults. Although juveniles may be more susceptible to police
interrogation or an unwitting waiver of fundamental rights because
of their age, inexperience, and intelligence, these factors do not
necessarily show incapacity to assist counsel or to understand the
nature of a juvenile adjudication. Indeed, the United States
Supreme Court has held that juvenile adjudications do not need to
conform with the due process requirements of a criminal trial. In re
Application of Gault, 387 U.S. 1, 30 (1967). A juvenile adjudication,
7 instead, requires “fundamental fairness.” McKeiver v. Pennsylvania,
403 U.S. 528, 543 (1971).
¶ 17 Colorado and other jurisdictions recognize that juveniles have
a fundamental right not to be tried while incompetent. People in
Interest of W.P., 2013 CO 11, ¶ 37; accord Matter of W.A.F., 573
A.2d 1264, 1267 (D.C. 1990); In re K.G., 808 N.E.2d 631, 639 (Ind.
2004). And some states have gone further to consider factors
unique to juveniles when making a competency determination. See
In re Carey, 615 N.W.2d 742, 747-48 (Mich. Ct. App. 2000); accord
In re J.M., 769 A.2d 656, 662 (Vt. 2001). But both Carey and J.M.
involved states that had no statutory juvenile competency test and
neither court held that due process requires a juvenile-specific test.
See Carey, 615 N.W.2d at 747; In re J.M., 769 A.2d at 664.
A.C.E-D. cites no authority, nor are we aware of any, holding that
due process requires a different competency test for juveniles.
¶ 18 In sum, A.C.E-D. argues that because the Constitution treats
juveniles differently from adults in some other circumstances, then
it must do so as to competency. But a juvenile adjudication need
only be fundamentally fair. Merely showing that “youth matters”
and that “children are fundamentally different than adults” is not
8 enough to show that using the same competency test for both
juveniles and adults is fundamentally unfair. Thus, we reject
A.C.E-D.’s argument.
¶ 19 A.C.E-D. next argues that section 19-2-1301(2) violates the
Dusky standard. There, the Supreme Court held that, to be
competent to stand trial, a defendant must have “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding,” and must have “a rational as well as
factual understanding of the proceedings against him.” 362 U.S.
402, 402 (1960) (citation omitted).
¶ 20 A.C.E-D. maintains that, based on the cross-reference to
section 16-8.5-101(11), section 19-2-1301(2) is unconstitutional
because it burdens the Dusky standard by also requiring a finding
of either a mental or developmental disability for juvenile
incompetency. Thus, A.C.E-D. continues, the statute would
preclude a finding of incompetence for a juvenile who, despite not
having a mental or developmental disability, is nevertheless
incompetent under Dusky because of factors such as his age,
cognitive ability, and cognitive development.
9 ¶ 21 But to show facial invalidity, A.C.E-D. must show that the
statute is unconstitutional in all its applications. Dallman, 225
P.3d at 625. So, just because the statute could allow a court to find
some juveniles competent who would be incompetent under the
two-part Dusky standard — for lack of a mental or developmental
disability — that does not show facial invalidity. This is because
the statute would also allow a court to find a juvenile having a
mental or developmental disability incompetent to proceed under
the two-part Dusky test. In other words, a court could apply the
statute without running afoul of the Dusky test. Id. And because
the statute could be applied constitutionally, A.C.E-D.’s facial
invalidity argument falls short. Id.
¶ 22 Not easily deterred, A.C.E-D. points to some states holding
that Dusky does not require a juvenile to have a mental or
developmental disability to be incompetent. But these holdings
were not on constitutional grounds. Rather, the cases held that
existing juvenile competency statutes in those states did not require
a finding of mental or developmental disability for a court to declare
a juvenile incompetent. See, e.g., In re Hyrum H., 131 P.3d 1058,
1062 (Ariz. Ct. App. 2006) (Arizona’s juvenile incompetency
10 definition does not require a finding of mental disease, defect, or
disability); Timothy J. v. Superior Court, 58 Cal. Rptr. 3d 746, 755
(Cal. Ct. App. 2007) (California’s juvenile incompetency statute does
not require that the minor have a mental disorder or developmental
disability before finding that he is incompetent to stand trial).
¶ 23 Because Colorado’s statute requires a finding of mental or
developmental disability, decisions in other states that have
adopted a more holistic approach to juvenile competency do not
suggest that our approach is unconstitutional. Again, A.C.E-D.
seems to admit as much in his reply brief, where he says that he is
asking “for acknowledgement of a growing body of law that
emphasizes that ‘youth matters’ and that ‘children are
constitutionally different than adults.’” But A.C.E-D. makes a
public policy argument better presented to the General Assembly.
State Farm Mut. Auto. Ins. Co. v. Fisher, 2018 CO 39, ¶ 26.1
¶ 24 Finally, A.C.E-D. argues that section 19-2-1301(2) violates due
process because it places the burden of submitting evidence, as well
as the burden of persuasion, on juveniles. Like his due process
1Indeed, by adopting section 19-2-103(9.5), C.R.S. 2018, the General Assembly has addressed A.C.E-D.’s concerns.
11 argument above, A.C.E-D. asserts that because the Constitution
grants certain protections to juveniles but not to adults, then it
must always grant juveniles greater protections. Again, A.C.E-D.
cites no authority holding that placing the burden of evidence and
persuasion on a juvenile in a competency hearing is
unconstitutional.
¶ 25 To the contrary, other states have held that placing the burden
on juveniles does not violate due process. See In re J.K., 873
N.W.2d 289, 296 (Iowa Ct. App. 2015); State v. P.E.T., 344 P.3d 689,
694 (Wash. Ct. App. 2015). We find these cases persuasive,
especially in the absence of any contrary authority, and follow
them.2
¶ 26 In the end, because A.C.E-D. failed to show that under no set
of circumstances would the statute be constitutional, we affirm the
trial court’s finding that the statute was not facially invalid.
2 The Attorney General argues that because the statute allows the prosecution to raise the issue of a juvenile’s competency and placing the burden of evidence and persuasion on the prosecution would not violate due process, the statute is not facially invalid. This argument is unpersuasive because due process protects individuals, not the state, from “arbitrary governmental restrictions on property and liberty interests.” Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 304 (Colo. 1992).
12 2. As-Applied Challenge
¶ 27 A.C.E-D. also mounts an as-applied challenge to the statute,
arguing that the trial court’s application of the statute precluded
him from being declared incompetent because he did not prove that
he had a mental or developmental disability. To prevail, the record
would have to show that A.C.E-D. presented evidence he was
incompetent to proceed under Dusky, but the trial court still found
him competent solely because he did not have a mental or
developmental disability. See Developmental Pathways, 178 P.3d at
534 (challenger must show how the statute was unconstitutional
under the circumstances in which he acted). The record shows
otherwise.
¶ 28 A.C.E-D. points to evidence that he had an IQ of 74, which
indicates a borderline level of functioning, and that he scored in in
the one percentile on his Vineland assessment.3 And the
psychologist’s evaluation does declare A.C.E-D. competent because
he does not have a mental or developmental disability. Still, other
3 The psychologist who conducted the competency evaluation noted that a score of 74 could be an indication of a developmental disability.
13 information in the psychologist’s report and referenced in the trial
court’s order shows that the statute was applied constitutionally.
¶ 29 The report makes several observations indicating competency:
A.C.E-D. knew or learned the nature of the charges against him, he
knew how he could assist his attorney, and he understood the
adversarial nature of the proceedings. As well, the psychologist
observed that when A.C.E-D. was less hostile and more cooperative,
he gave better answers. The trial court found the evidence in the
report sufficient to declare A.C.E-D. competent, especially
considering A.C.E-D.’s failure to put forth his best effort in his
competency evaluation.
¶ 30 In sum, because sufficient evidence in the record supports the
trial court’s finding of competency under the Dusky standard,
A.C.E-D. has not proven beyond a reasonable doubt that the trial
court unconstitutionally applied the statute to him.
III. The Trial Court Did Not Abuse Its Discretion in Finding A.C.E-D. Competent to Proceed
¶ 31 A.C.E-D.’s competence to proceed is a question of fact. People
v. Palmer, 31 P.3d 863, 865 (Colo. 2001), superseded by statute as
14 stated in W.P., 2013 CO 11. The trial court’s decision is reviewed
for an abuse of discretion. Id. at 865-66. An abuse of discretion
occurs when the trial court’s “ruling is ‘manifestly arbitrary,
unreasonable, or unfair,’ or where it is based on an erroneous view
of the law.” People v. Elmarr, 2015 CO 53, ¶ 20 (citation omitted).
¶ 32 In a juvenile proceeding, if the court believes that it lacks
enough information to make a finding of competency, it shall order
a competency evaluation. § 19-2-1302(1), C.R.S. 2015. A licensed
psychiatrist or psychologist with expertise in evaluating juveniles
generally conducts the evaluation and must, at minimum, provide
an opinion as to whether the juvenile is incompetent. Id.
C. Application
¶ 33 A.C.E-D. argues that he met his burden of proof during his
competency hearing by presenting evidence of a learning disability,
low IQ, an impaired capacity to acquire and retain verbal
information, and a limited understanding of a juvenile adjudication
and the roles of the various actors in it. But as discussed in Part II
above, other evidence in the record suggests A.C.E-D. was
competent. And the psychologist who conducted his competency
15 evaluation found A.C.E-D. competent to proceed. The trial court
found the psychologist credible and that his report included
sufficient information from which to declare A.C.E-D. competent.
¶ 34 Based on this conflicting evidence, we cannot say that the trial
court was manifestly arbitrary, unreasonable, or unfair in finding
the psychologist credible and using his report to find A.C.E-D.
competent. See People v. Corichi, 18 P.3d 807, 812 (Colo. App.
2000) (trial court did not abuse its discretion in finding defendant
competent to proceed despite evidence he experienced a brief
delusional episode during trial).
IV. The Trial Court Did Not Abuse Its Discretion in Admitting the Facebook Messages
A. Additional Background
¶ 35 As of April 2013, the victim of the misdemeanor harassment
charge and A.C.E-D. had been dating. They often communicated by
messaging via Facebook. In mid-April, the victim attended the
prom with her ex-boyfriend. A week later, she received messages
from A.C.E-D.’s Facebook account (username AD) that she
perceived as threatening. These messages were the sole evidence
supporting the harassment charge.
16 ¶ 36 At trial, a detective testified that he had printed from the
victim’s account a few of the almost 1000 Facebook messages
exchanged between the victim and the AD account.
¶ 37 Then the prosecution called the victim. When she began
testifying about Facebook messages exchanged with the AD account
after the prom, A.C.E-D. objected for lack of authentication, citing
out-of-state authority. The prosecutor asked for and received
permission to develop further foundation.
¶ 38 The victim explained that she believed the messages had come
from A.C.E-D. because of “incomplete spellings,” “the way he talks,”
and private matters that would not be known to other people. She
added that she had not altered any of the messages on her account.
The trial court, noting “certain spelling patterns, modes of speaking
and pet names,” allowed the printout of the messages to be
admitted.
¶ 39 On cross-examination, the victim acknowledged having
received a message from M, a friend of A.C.E-D. or his sister, on the
AD account, although in the message M had identified herself.
Also, the victim admitted having seen A.C.E-D. lend his phone to D,
another friend, so that D could use the AD account. And she said
17 that she had not sent one of the messages shown on the print out
as having come from her Facebook account.
¶ 40 T.M., another friend of A.C.E-D., testified for the defense that
A.C.E-D. lent his phone to friends and left it lying around. T.M.
had sometimes used A.C.E-D.’s phone to access his own Facebook
account.
¶ 41 A.C.E-D. did not testify.
B. Standard of Review
¶ 42 A trial court’s admission of evidence is reviewed for an abuse
of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). An
abuse of discretion occurs when the trial court’s “ruling is
‘manifestly arbitrary, unreasonable, or unfair,” or where it is based
on an erroneous view of the law.” Elmarr, ¶ 20 (citation omitted).
C. Law
¶ 43 The “requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims.” CRE 901(a). “The burden to authenticate ‘is
not high — only a prima facie showing is required.’” People v.
Glover, 2015 COA 16, ¶ 13 (citations omitted). Once evidence has
18 been authenticated and admitted, the fact finder determines its
weight. People v. Crespi, 155 P.3d 570, 574 (Colo. App. 2006).
¶ 44 Facebook messages are similar to emails and may be
authenticated through “testimony of a witness with knowledge that
a matter is what it is claimed to be,” or “through consideration of
distinctive characteristics shown by an examination of their
contents and substance in light of the circumstances of the case.”
See Glover, ¶ 24 (citing CRE 901(b)(4)). Authenticating Facebook
messages requires two showings: first, the party seeking admission
must show that the records were those of Facebook and, second,
that the communications recorded therein were made by the
purported party. Id. at ¶ 23.
¶ 45 As to the first step, A.C.E-D. did not raise this issue below and
does not argue it on appeal.
¶ 46 Regarding the second step, a central concern for courts is the
ease with which someone can assume the identity of another on
Facebook. Id. at ¶ 29 (citing Campbell v. State, 382 S.W.3d 545,
550 (Tex. Ct. App. 2012)). Thus, “several jurisdictions have
concluded that where a message is posted on a social networking
website, additional corroborating evidence of authorship is required
19 beyond confirmation that the social networking account is
registered to the party purporting to create those messages.” Id. at
¶ 30 (collecting cases). A.C.E-D. has cited several out-of-state cases
holding that trial courts abused their discretion in admitting
messages from social networking sites without additional
corroboration as to the sender. See, e.g., State v. Eleck, 23 A.3d
818, 824 (Conn. App. Ct. 2011) (messages could have been
generated by anyone with access as they did not reflect distinct
information only the purported author would know); Griffin v. State,
19 A.3d 415, 424 (Md. 2011) (identifying the date of birth of the
creator and her image on the site insufficient to authenticate a
social media page); Commonwealth v. Williams, 926 N.E.2d 1162,
1172-73 (Mass. 2010) (foundational testimony did not identify the
person who actually sent the message, only that it came from the
defendant’s account); Smith v. State, 136 So. 3d 424, 434-35 (Miss.
2014) (witness did not testify as to how she knew the defendant had
sent her the messages and the information in the messages was
known to multiple people).
¶ 47 The Glover division also addressed authenticating the
authorship of Facebook messages and recognized, among other
20 things, that witness testimony about making and receiving the
Facebook messages at issue, the use of nicknames and other
unique identifiers, as well as the witness’ belief that she was never
talking to someone other than the defendant, are all relevant factors
that a trial court may consider. Glover, ¶ 32; see also People v.
Heisler, 2017 COA 58, ¶ 16 (text messages admissible where victim
testified that pictures of text messages were a fair and accurate
representation of the texts she received, she recognized the phone
number and used it to communicate with the defendant, and she
recognized the context of the text messages as being from the
defendant).
D. Application
¶ 48 As indicated, the parties do not contest the first step. But
A.C.E-D. does assert that the prosecution did not provide sufficient
evidence to show that he wrote and sent the Facebook messages.
¶ 49 During the adjudication, the victim testified to distinct
characteristics in the Facebook messages that identified A.C.E-D.
as the likely author. The Glover division held that similar testimony
was sufficient to authenticate Facebook messages. ¶¶ 29-33.
However, unlike in Glover, A.C.E-D. presented evidence raising
21 doubt as to whether he had written the messages at issue. And he
points to several cases from other states holding that
authentication of social media messages requires more than a mere
showing that the messages came from an account in the name of
the sender and argues the prosecution failed to provide such
evidence.
¶ 50 We decline to address A.C.E-D.’s out-of-state authority
because Glover already requires additional evidence when
authenticating Facebook messages. Id. at ¶¶ 29-33. Indeed, the
division acknowledged the authentication problems inherent in
Facebook messages but affirmed their admission after noting
evidence in addition to the defendant’s name and image appearing
on the page. Id. And because the prosecution presented similar
evidence in this case, it met the heightened authentication standard
for Facebook messages. A.C.E-D.’s contrary evidence goes to
weighing the messages, Crespi, 155 P.3d at 574, the very argument
he made in closing.
¶ 51 For these reasons, we conclude that the trial court did not
abuse its discretion in admitting the messages.
22 V. A.C.E-D. Waived His Right to Appeal the Trial Court’s Amendment to the Information Charging Him with Harassment
¶ 52 The initial information charged A.C.E-D. with harassment that
occurred on or about April 21, 2013. A.C.E-D. entered a guilty plea
to the harassment charge but moved to withdraw it. On October
16, 2014, the prosecution moved to amend the harassment count to
include a date range between April 21 and April 22, 2014. The
record does not explain the date discrepancy, and A.C.E-D. did not
raise it. The trial court granted the motion.
¶ 53 After A.C.E-D.’s adjudication, he moved for a new trial raising,
for the first time, the date range in the amended information. He
contended that the trial court erred in failing to dismiss the case
when all the evidence presented against him showed that the
alleged harassment took place on or between April 21 and 22, 2013,
and not on or between April 21 and 22, 2014. The trial court
denied the motion and amended the date to 2013 under Crim. P.
36.
23 ¶ 54 The Attorney General argues that A.C.E-D. waived his right to
appeal because of his delay in objecting to the date amendment.
We agree.
B. Waiver
¶ 55 Waiver is the “intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted).
When a party waives a right or privilege, the waiver precludes
appellate review. Id. A waiver may be express or implied. Id. at
¶ 42.
¶ 56 An appellate court “presume[s] that attorneys know the
applicable rules of procedure.” Hinojos-Mendoza v. People, 169 P.3d
662, 670 (Colo. 2007). “Objections based on defects in the form of
the summons or complaint must be raised by motion before trial”
and failure to do so constitutes a waiver. People v. Dickinson, 197
Colo. 338, 339, 592 P.2d 807, 808 (1979). This rule ensures that
litigation is “determined on the merits and not on the basis of
technical rules.” Id.
¶ 57 An amendment is one of form if it does not add an essential
element of the offense and “the original information provided notice
such that the defendant was adequately advised of the charges
24 against him.” People v. Washam, 2018 CO 19, ¶¶ 18, 26. As well,
an amendment to the date of the charge is one of form so long as
“the time or date of commission of the offense is not a material
element of the charged crime.” People v. James, 40 P.3d 36, 48
(Colo. App. 2001).
¶ 58 A.C.E-D. argues that the amendment to the date is one of
substance because it charged an impossible date. He relies on
authority that “[a] crime cannot be charged in futuro and an
indictment or information that purports to do so in legal effect
charges nothing and is without efficacy.” Rowse v. Dist. Court, 180
Colo. 44, 47, 502 P.2d 422, 424 (1972). But, this case is
inapplicable because the information was amended in October 2014
and alleged a past date range, April 21-22, 2014.
¶ 59 A.C.E-D. makes no other arguments that the amendment was
one of substance. Importantly, he does not maintain that the time
or date is a material element of his harassment charge; nor does the
statute suggest that it is. See § 18-9-111(1)(e), C.R.S. 2018 (listing
elements of harassment). Thus, we conclude that the amendment
did not add an essential element of the offense.
25 ¶ 60 The amendment at issue could also be one of substance if the
original information did not provide A.C.E-D. with adequate notice
of the charges against him. Washam, ¶ 26. A.C.E-D. does not
argue that he lacked adequate notice of the charges against him.
¶ 61 Because the amendment to the offense date did not add an
essential element to the crime or prejudice A.C.E-D.’s defense, we
hold that the amendment to the information was one of form. So,
to preserve the issue, A.C.E-D. needed to object prior to the start of
trial. Dickinson, 197 Colo. at 339, 592 P.2d at 808.
¶ 62 During his adjudication, A.C.E-D. defended himself on the
merits: he cross-examined witnesses, called witnesses of his own,
and challenged the evidence admitted against him. Only after he
lost on the merits did A.C.E-D. challenge his adjudication on the
inadequacy of the information. Our supreme court has rejected
such a trial strategy. Id.
¶ 63 Therefore, A.C.E-D. waived his challenge.
IV. Conclusion
¶ 64 We affirm A.C.E-D.’s adjudication as to both the theft and the
harassment charges.
JUDGE HARRIS and JUDGE WELLING concur.