24CA1215 Peo v Torres 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1215 Jefferson County District Court No. 22CR3400 Honorable Christopher Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony David Torres,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE LIPINSKY Welling and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Anthony David Torres appeals the judgment of conviction
entered on a jury verdict finding him guilty of one count of driving
under the influence (DUI) (fourth or subsequent offense). We
affirm.
I. Background
¶2 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶3 One evening, Sergeant Joshua Mazone checked on a stalled
car that was stopped in the street. As he approached the car,
Sergeant Mazone saw that it “appeared to be damaged” and “wasn’t
moving,” although he could hear its engine revving.
¶4 When Sergeant Mazone reached the car, he saw Torres step
out of the driver’s seat. “Right off the bat,” Sergeant Mazone
noticed that Torres exhibited signs of intoxication.
¶5 Sergeant Mazone began questioning Torres. While speaking
with Sergeant Mazone, Torres made several incriminating
statements, including “I’m drunk” and “Yup, I’m a DUI.” Moreover,
Torres told Sergeant Mazone he had three prior DUIs.
1 ¶6 Detective Brian Wonderly arrived shortly thereafter to assist.
Torres admitted to Detective Wonderly that he had been driving and
had damaged the car.
¶7 After Torres made these incriminating statements, Detective
Wonderly handcuffed him and placed him in a patrol car. Officer
David Gustafson then arrived and drove Torres to a police station,
where Torres was read his Miranda rights. See Miranda v. Arizona,
384 U.S. 436, 478-79 (1966).
¶8 Torres was charged with three counts:
(1) DUI (fourth or subsequent offense), in violation of section
42-4-1301(1)(a), C.R.S. 2025;
(2) driving after revocation prohibited (habitual traffic
offender), in violation of section 42-2-206(1)(a), C.R.S.
2025; and
(3) careless driving, in violation of section 42-4-1402(1),
(2)(a), C.R.S. 2025.
¶9 Defense counsel filed a pretrial motion to suppress all of
Torres’s incriminating statements to Sergeant Mazone and Detective
Wonderly. The trial court denied the motion, and the case
2 proceeded to trial. At trial, Torres exercised his constitutional right
not to testify.
¶ 10 The prosecution played for the jury Sergeant Mazone’s and
Detective Wonderly’s bodycam videos from the night of Torres’s
arrest.
¶ 11 To prove Torres’s prior DUI convictions, the prosecution
tendered a certification of records for Torres’s Department of Motor
Vehicles (DMV) driver history, including a Criminal Justice
Information Services Mittimus Form documenting that Torres had
been convicted of “Driving Under the Influence-W/3+ Priors” in
Denver on August 6, 2018, and Torres’s associated mugshot.
Further, the prosecution produced a redacted certified DMV driver
history showing that Torres had four prior DUI convictions: (1) the
2018 conviction noted above; (2) a 2004 conviction in Denver; (3) a
2002 driving while ability impaired (DWAI) conviction in Arapahoe
County; and (4) a 1999 DWAI conviction in Arapahoe County. (We
refer to these documents jointly as the certified records.)
¶ 12 The prosecution introduced the certified records through
Officer Gustafson, whom defense counsel sought to cross-examine
about the “crucial legal distinction” between the two types of DUI
3 “convictions” that can appear in DMV records — those resulting
from a DMV administrative determination and those imposed by a
court. The trial court precluded such cross-examination, however.
¶ 13 The jury convicted Torres of one count of DUI (fourth or
subsequent offense), a class four felony, and one count of careless
driving. (The prosecution dismissed the driving after revocation
count. Torres does not appeal his careless driving conviction.)
¶ 14 The trial court sentenced Torres to six years in community
corrections on the DUI count and time served on the careless
driving count.
¶ 15 On appeal, Torres challenges his conviction for felony DUI on
three grounds:
(1) The trial court erred by admitting his incriminating
statements to Sergeant Mazone and Detective Wonderly
because they were the product of a custodial
interrogation conducted without a Miranda warning.
(2) The court erred by denying defense counsel the
opportunity to cross-examine Officer Gustafson regarding
the various types of convictions that may appear on DMV
records.
4 (3) The court plainly erred and violated Torres’s
Confrontation Clause rights by admitting a DMV records
custodian’s attestation that Torres was “the only subject
with this name and date of birth” in the DMV’s records.
¶ 16 We affirm.
II. Analysis
A. The Trial Court Did Not Err by Denying the Motion to Suppress
1. Standard of Review
¶ 17 “[W]e defer to the trial court’s findings of fact when they are
supported by the record but review its legal conclusions de novo.”
People v. Alemayehu, 2021 COA 69, ¶ 24, 494 P.3d 98, 104.
Therefore, we review de novo the trial court’s ultimate custody
determination. People v. Eugene, 2024 CO 59, ¶ 13, 555 P.3d 601,
604.
2. Miranda Warnings
¶ 18 “To protect a suspect’s Fifth Amendment right against self-
incrimination, Miranda prohibits the prosecution from introducing
in its case-in-chief any statement, whether inculpatory or
exculpatory, procured by custodial interrogation, unless the police
precede their interrogation with certain warnings.” Effland v.
5 People, 240 P.3d 868, 873 (Colo. 2010). “Accordingly, Miranda
protections only apply when a suspect is subject to both custody
and interrogation.” Id.
¶ 19 “In determining whether an individual has been subjected to
custodial interrogation, the relevant inquiry is ‘whether a
reasonable person in the suspect’s position would believe himself to
be deprived of his freedom of action to the degree associated with a
formal arrest.’” Id. at 874 (quoting People v. Hankins, 201 P.3d
1215, 1218 (Colo. 2009)). This inquiry (the factor analysis) involves
several nonexclusive factors, including the following:
(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer’s tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer’s response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant’s verbal or nonverbal response to such directions.
6 Id. (quoting People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002));
see People v. Sampson, 2017 CO 100, ¶ 18, 404 P.3d 273, 276-77.
“No one factor is determinative.” Effland, 240 P.3d at 874.
3. Additional Facts
¶ 20 The court conducted two evidentiary hearings on Torres’s
motion to suppress. At the hearings, Sergeant Mazone and
Detective Wonderly testified about their interactions with Torres
and the circumstances of his arrest. In addition, the prosecution
provided the court with Sergeant Mazone’s and Detective
Wonderly’s bodycam videos from the night of Torres’s arrest.
¶ 21 Sergeant Mazone testified that he walked over to investigate
the car because it was facing the wrong way on the street. His
testimony and bodycam video showed the following:
• Torres stepped out of the car, which was parked against
a curb and was apparently nonfunctional. He appeared
to have urinated on himself and had difficulty
maintaining his balance. Sergeant Mazone told Torres to
“[p]ut [his] butt up” against the car’s trunk.
• Sergeant Mazone informed police dispatch by radio that
he had encountered an “intoxicated party.” (He testified
7 that he could smell alcohol emanating from Torres.)
Sergeant Mazone requested Torres’s identification and
asked him for basic information, such as his name, date
of birth, and address. In answering Sergeant Mazone’s
questions, Torres noticeably slurred his speech and
seemed to have difficulty remembering his address.
• Sergeant Mazone asked Torres how much he had had to
drink that night. Torres replied, “Uh, a couple.”
Sergeant Mazone then told dispatch, “This [case] will be a
DUI.” Without prompting, Torres said, “Yup. I’m a DUI,”
before he lost his balance and nearly fell over.
• Torres then said — again without prompting — “I’m
drunk.” In response to Sergeant Mazone’s question
about his number of prior DUIs, Torres said, “three.”
Torres then asked, “Are you gonna arrest me?” Sergeant
Mazone replied, “Hold on, we’ve gotta ask some
questions . . . .”
• When Detective Wonderly arrived, he walked over to
assess the damage to the car and determine its cause.
When Torres tried to follow Detective Wonderly into the
8 street, both officers told him to stay by the trunk of the
car.
• Detective Wonderly asked Torres how much he had had
to drink that night. Torres said, “Not too much. Couple
beers.” Sergeant Mazone’s bodycam video ends a few
seconds later.
¶ 22 Detective Wonderly’s bodycam video recorded the events
described above beginning with his arrival on the scene. In
addition, his bodycam recorded the following:
• Detective Wonderly asked Torres where he had been
drinking. Torres responded that he did not remember.
• Detective Wonderly asked him, “Can we move over to this
parking lot so we’re not standing in the middle of the
road?” Torres said, “Yeah, that’s fine.” At the parking
lot, Detective Wonderly asked, “Would you be willing to
do voluntary roadside maneuvers?” Torres responded,
“Nope. I’m drunk.” Detective Wonderly asked whether
Torres had driven the car that night. Torres confirmed
he had been driving. Torres then said, “So, here I am,”
turned his back to Detective Wonderly, and placed his
9 hands behind his back as if offering himself to be
handcuffed. Detective Wonderly then arrested Torres for
DUI.
¶ 23 The trial court denied the motion to suppress after finding that
Torres was not in custody until Detective Wonderly handcuffed and
arrested him.
4. Torres Was Not in Custody
¶ 24 Torres contends that, under the factor analysis, the trial court
erred by finding that he was not in custody until Detective
Wonderly handcuffed and arrested him. We disagree.
• First factor: the time, place, and purpose of the encounter.
¶ 25 The trial court found that the encounter took place in “the
middle of the night,” which weighs in favor of a custody
determination. See People v. Cline, 2019 CO 33, ¶ 22, 439 P.3d
1232, 1238 (explaining that a suspect’s encounter with police
officers at night weighs in favor of custody); cf. People v. Allman,
2012 COA 212, ¶ 49, 321 P.3d 557, 569 (concluding that an
interrogation “in broad daylight” goes against a custody finding).
The court further found that the encounter occurred “out in the
open,” which weighs against a custody finding. See People v.
10 Pleshakov, 2013 CO 18, ¶ 30, 298 P.3d 228, 235 (concluding that a
conversation in “public view” weighs against a custody finding
because a “passersby could have witnessed the interaction”). And
the purpose of the encounter was to investigate a possible DUI. The
fact that the encounter took place at night in a public location, as
part of a criminal investigation, does not weigh either for or against
a custody determination.
• Second factor: the persons present during the interrogation.
¶ 26 The trial court found that the encounter initially only involved
one officer — Sergeant Mazone — and that a second officer,
Detective Wonderly, arrived after Sergeant Mazone’s initial
interactions with Torres. Therefore, the number of persons present
weighs against a custody determination. See id. (holding that the
defendant was not in custody even though four officers were
present and the defendant’s conversation with one of the officers
occurred in “close proximity” to two other officers).
• Third factor: the words spoken by the officer to the defendant.
¶ 27 The trial court found that the officers were “certainly asking
questions” and “satisf[ied] an interrogation standard pretty quickly.”
11 But the officers did not make any threats or promises to Torres,
which weighs against a custody finding. See Allman, ¶ 46, 321 P.3d
at 568. In addition, the officers asked Torres “open-ended
questions,” People v. Willoughby, 2023 CO 10, ¶ 31, 524 P.3d 1186,
1193, which also weighs against a custody determination.
• Fourth factor: the officer’s tone of voice and general demeanor.
¶ 28 According to the trial court, the officers’ tone of voice and
general demeanor were “conversational” and “fairly friendly,” which
weighs against a determination that Torres was in custody. See
Sampson, ¶ 26, 404 P.3d at 278.
• Fifth factor: the length and mood of the interrogation.
¶ 29 The record confirms the court’s finding that Torres’s
interrogation was of a “pretty limited [temporal] scope.” The officers
testified that their interactions with Torres lasted approximately ten
minutes, although the bodycam videos show that only eight
minutes elapsed between the time Sergeant Mazone first contacted
Torres and when Detective Wonderly handcuffed him. The brevity
of an interaction between a suspect and police officers weighs
against a custody determination. See People v. Garcia, 2017 CO
12 106, ¶ 37, 409 P.3d 312, 319 (concluding that the defendant was
not in custody when the total length of each of his interactions with
police officers was “short, each lasting less than seven minutes”); cf.
People v. Minjarez, 81 P.3d 348, 356-57 (Colo. 2003) (noting that
officers questioned the defendant for forty-five minutes, which
supported the conclusion that the defendant was in custody). In
addition, Torres did not attempt to end the encounter or request a
lawyer, further weighing against a custody determination. See
Sampson, ¶ 28, 404 P.3d at 278.
• Sixth factor: whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation.
¶ 30 The officers did not restrain Torres until he was arrested.
Before that time, however, the officers made requests that limited
Torres’s movement. But the officers made those requests to keep
Torres from being struck by a vehicle, such as when Torres was
standing in the middle of the street. Safety-related officer requests
are not indicative of custody. See Niemeyer v. People, 2024 CO 58,
¶ 39, 555 P.3d 607, 617.
• Seventh factor: the officer’s response to any questions asked by the defendant.
13 ¶ 31 Sergeant Mazone’s response to Torres’s question, “Are you
gonna arrest me?” shows that the officers were investigating a
possible crime up to the point when Detective Wonderly handcuffed
and arrested Torres. Significantly, in response to Torres’s question,
Sergeant Mazone said, “Hold on, we’ve gotta ask some
questions . . . .” Because Sergeant Mazone’s response indicated
that the officers were still conducting an investigation and that
Torres’s arrest “was not a foregone conclusion” at the time,
Sergeant Mazone’s response to Torres’s question weighs against
custody. Willoughby, ¶ 37, 524 P.3d at 1194.
• Eighth factor: whether directions were given to the defendant during the interrogation.
¶ 32 The trial court found that the officers were “careful not to
direct [Torres] too much.” For example, Detective Wonderly calmly
asked Torres to walk to the parking lot rather than ordering him to
move there. Accordingly, this factor, too, does not support a
custody determination.
• Ninth factor: the defendant’s verbal or nonverbal response to such directions.
¶ 33 The trial court found that Torres was “responsive” to the
officers’ directions and that “much of [the officers’ directions were]
14 conversational,” weighing against a custody determination. See
Eugene, ¶¶ 9, 27, 555 P.3d at 604, 607 (concluding that the
defendant was not in custody when he was “responsive” and the
interrogation was “conversational”).
¶ 34 In considering the custody factors, we agree with the trial
court that, although the officers “limit[ed] [Torres’s] movement in
some fashion,” those limitations did not rise to the degree
associated with a formal arrest because the officers made
“conversational,” rather than “confrontational,” requests related to
Torres’s safety. See Niemeyer, ¶ 39, 555 P.3d at 617; Effland, 240
P.3d at 874.
¶ 35 Nevertheless, Torres contends that he was in custody before
Detective Wonderly handcuffed him for four reasons.
¶ 36 First, Torres argues that Sergeant Mazone placed him in
custody when Sergeant Mazone “ordered him to remain positioned
at the back of [the car].” But we are unaware of a Colorado case
supporting a determination that the officers’ safety-related
restrictions on Torres’s movements would have caused “a
reasonable person in [Torres]’s position [to] believe himself to be
deprived of his freedom of action to the degree associated with a
15 formal arrest.” Effland, 240 P.3d at 874 (quoting Hankins, 201 P.3d
at 1218); see People v. Figueroa-Ortega, 2012 CO 51, ¶ 8, 283 P.3d
691, 693 (holding that officers’ significant infringements on a
suspect’s movement by “draw[ing] guns and [applying] physical
restraints like the use of handcuffs” are still “not dispositive” in
determining whether the suspect is in custody).
¶ 37 In addition, given the context of Sergeant Mazone’s requests,
we are unpersuaded by Torres’s contention that Sergeant Mazone
improperly “established . . . control over [Torres]’s physical
autonomy” by telling Torres “to remain positioned” at the back of
the car. As noted above, Sergeant Mazone’s bodycam video shows
that Torres had difficulty maintaining his balance and that
Sergeant Mazone gave Torres directions to keep him from falling or
walking into the street. See Niemeyer, ¶ 39, 555 P.3d at 617
(holding that an officer’s safety-related requests are not indicative of
custody).
¶ 38 Second, Torres contends that, even if he was not in custody
when Sergeant Mazone asked him to stay near the car, he was in
custody “when Detective Wonderly arrived on scene.” In support of
this contention, Torres argues that Sergeant Mazone impermissibly
16 restricted his movement by telling him not to follow Detective
Wonderly into the street when Detective Wonderly walked over to
the car to check it for damage and when Sergeant Mazone asked
Torres to “lean up against [the] car” to avoid falling. For the
reasons explained above, however, we are unpersuaded that the
officers’ restrictions that kept Torres from falling over or straying
into the street are indicia of custody. And, as noted above, the
presence of two uniformed officers does not establish that a suspect
was in custody. See Pleshakov, ¶ 30, 298 P.3d at 235.
¶ 39 Third, Torres argues he was in custody when Sergeant Mazone
“effectively announced that [Torres] was suspected of criminal
conduct” by telling police dispatch that “this will be an intoxicated
party” and “[t]his will be a DUI.” Sergeant Mazone indeed said in
Torres’s presence that he was investigating Torres for DUI. But we
are unaware of any Colorado case suggesting that an officer’s
statement to a third party that the potential suspect overhears can
support a custody determination. Rather, the United States
Supreme Court suggested that these types of statements, even
when directed to the defendant, do not support a custody
determination. See Oregon v. Mathiason, 429 U.S. 492, 493, 495
17 (1977) (concluding that the defendant was not in custody even
though an officer told him that the police believed he was involved
in a burglary and falsely said that the defendant’s fingerprints had
been found at the crime scene).
¶ 40 Fourth, Torres contends that he was in custody when
Detective Wonderly “directed [him] away from [the car] and across
the street to the sidewalk.” But, again, Detective Wonderly asked
Torres to move off the street for safety reasons. As discussed above,
officer safety-related requests are not an indicator of custody. See
Niemeyer, ¶ 39, 555 P.3d at 617.
¶ 41 In sum, Torres was not in custody under the factor analysis.
See Effland, 240 P.3d at 874. Thus, we reject Torres’s argument
that the trial court erred by finding he was not in custody until
Detective Wonderly handcuffed and arrested him.
¶ 42 In addition, Torres argues that his inculpatory statements to
the officers resulted from an improper interrogation. We need not
reach this argument, however, because, as explained above, Torres
was not in custody when he made the statements.
18 B. The Trial Court Properly Limited Defense Counsel’s Cross-Examination of Officer Gustafson
¶ 43 Trial judges retain “wide latitude” to exclude evidence “through
the application of evidentiary rules.” Krutsinger v. People, 219 P.3d
1054, 1062 (Colo. 2009). Accordingly, they possess the “discretion
to impose limits on cross-examination of witnesses, and we will not
disturb rulings on those limits absent an abuse of that discretion.”
Margerum v. People, 2019 CO 100, ¶ 9, 454 P.3d 236, 239. “A trial
court abuses its discretion when it misconstrues or misapplies the
law, or when its decision is manifestly arbitrary, unreasonable, or
unfair.” People v. Knapp, 2020 COA 107, ¶ 31, 487 P.3d 1243,
1252.
2. Additional Facts
¶ 44 After the court admitted the certified records into evidence,
defense counsel sought to cross-examine Officer Gustafson, who
had laid the foundation for the records’ admission, regarding the
information documented in the “convictions” section of a DMV
driver history.
19 ¶ 45 Officer Gustafson testified that the DMV has its own
administrative courts that are separate from criminal courts; those
administrative courts conduct hearings; and that, at such hearings,
the DMV’s burden of proof is lower than prosecutors’ burden of
proof in criminal cases. But the prosecutor objected before defense
counsel could ask Officer Gustafson about this lower burden of
proof.
¶ 46 The court sustained the objection. In response, defense
counsel explained that she sought to establish through this line of
questioning that “DMV courts are separate from criminal courts.”
During a bench conference, defense counsel argued that she was
entitled to attempt to establish, through Officer Gustafson, that one
or more of the convictions shown on Torres’s certified DMV driver
history could be administrative. She said that, if so, the jury could
not consider the administrative convictions when determining
whether Torres was guilty of felony DUI. The prosecutor responded
that defense counsel’s assertion was “not correct” because Torres’s
driver history documented four prior convictions in courts of law.
The court again sustained the prosecutor’s objection.
20 ¶ 47 After the jury left for the day, defense counsel asked the court
to reconsider its decision. Defense counsel argued that, because
section 42-2-127, C.R.S. 2025, requires the DMV to consider a
failure to appear in court or a bond forfeiture “as a conviction,” the
convictions shown in Torres’s certified DMV driver history may have
merely resulted from his failure to appear at a DMV hearing or his
forfeiture of a bond. The court denied the motion to reconsider.
3. Convictions in DMV Records
¶ 48 Torres contends that the court erred by refusing to allow
defense counsel to establish through Officer Gustafson that “the
‘convictions’ listed in DMV records encompass administrative
determinations and procedural outcomes that do not qualify as
‘convictions’” under section 42-4-1301 — the felony DUI statute.
We disagree.
¶ 49 Title 42, which houses Colorado’s vehicle and traffic statutes,
indeed contains more than a single definition of “conviction.” For
purposes of articles 1 through 4 of title 42, “unless the context
otherwise requires,” a “conviction” includes pleas of guilty or nolo
contendere, guilty verdicts, adjudications of juvenile delinquency,
and payments of a penalty assessment for offenses that are eligible
21 for “points,” as well as convictions only applicable to commercial
license holders. § 42-1-102(19), C.R.S. 2025.
¶ 50 Torres focuses on the definition of “conviction” found in
section 42-2-127, which governs the DMV’s authority to suspend a
driver’s license based on a driver’s accrual of a certain number of
traffic violation points within a certain time period. The relevant
language of the statute says:
For the purposes of this article, a plea of no contest accepted by the court or the forfeiture of any bail or collateral deposited to secure a defendant’s appearance in court or the failure to appear in court by a defendant charged with DUI, DUI per se, or [underage drinking and driving] who has been issued a summons and notice to appear pursuant to section 42-4-1707[, C.R.S. 2025,] as evidenced by records forwarded to the department in accordance with the provisions of section 42-2-124[, C.R.S. 2025,] shall be considered as a conviction.
§ 42-2-127(6)(b).
¶ 51 The definition of “conviction” in section 42-2-127(6)(b) appears
to conflict with the definition of the word in section 42-1-102(19).
The former statute says that failures to appear and bond forfeitures
for particular offenses must be “considered as a conviction.”
Section 42-2-127, which authorizes the DMV to suspend licenses
22 for a defendant’s failure to appear on a DUI charge, says that this
definition of “conviction” applies to the entirety of title 42, article 2.
§ 42-2-127(6)(b). For this reason, Torres asserts that, under section
42-2-127(6)(b), failures to appear and bond forfeitures are reported
as “convictions” in DMV driver histories, even though they cannot
support a felony DUI conviction.
¶ 52 However, even if Torres’s statutory analysis is correct, the trial
court found that the only conviction information documented in
Torres’s DMV driver history “appear[ed] to reflect criminal
convictions.” (Emphasis added.) Although we acknowledge that he
did not bear the burden of proof on this issue, significantly, Torres
does not dispute the court’s finding; he cites no part of the record
indicating that any of the convictions in his DMV driver history were
entered through an administrative action.
¶ 53 But even if we were to assume that failures to appear and
bond forfeitures for DUIs can be listed as “convictions” in a DMV
driver history, the DMV would still be required to distinguish
between those types of convictions and convictions resulting from
criminal trials in a court of law. Section 42-2-121(2)(a), C.R.S.
2025, specifies that the DMV must make “suitable notations [on a
23 driver history so that] an individual record of each licensee”
distinguishes between “the convictions of such licensee” and “the
departmental actions.”
¶ 54 Because the “convictions” section of Torres’s DMV driver
history only appears to “reflect criminal convictions,” we are not
persuaded that those convictions could have resulted from
administrative proceedings. Furthermore, unlike the “convictions”
section, the “withdrawal of privilege” section of Torres’s DMV driver
history includes references to “Admin” proceedings. This tells us
that Torres was convicted of DUI or DWAI in a court of law on at
least four prior occasions.
¶ 55 For these reasons, we conclude that the trial court did not err
by precluding defense counsel from cross-examining Officer
Gustafson on the meaning of “conviction” in DMV driver histories.
See Krutsinger, 219 P.3d at 1062.
24 C. The Court Did Not Plainly Err by Admitting the DMV Records Custodian’s Attestation into Evidence
¶ 56 “We review de novo a defendant’s contention that the trial
court violated [his] Confrontation Clause rights.” People v. Phillips,
2012 COA 176, ¶ 85, 315 P.3d 136, 157.
¶ 57 On appeal, Torres contends that the court violated his
Confrontation Clause rights by admitting into evidence the DMV
records custodian’s attestation, attached to his certified DMV driver
history, that said, “[a] search of our records has revealed that this is
the only subject with this name and date of birth.” He did not
preserve this contention, however.
¶ 58 Because Confrontation Clause violations are trial errors, we
review unpreserved arguments regarding such constitutional
violations under the plain error standard. People v. Vigil, 127 P.3d
916, 929-30 (Colo. 2006). An error is plain if it is “obvious and
substantial.” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116,
120. An error is obvious if it is “so clear-cut” that “a trial judge
should be able to avoid it without benefit of objection.” People v.
Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero
25 v. People, 2017 CO 37, ¶ 6, 393 P.3d 973, 976). The defendant
bears the burden to establish that an error occurred and that it was
obvious and substantial. See Kaufman v. People, 202 P.3d 542, 549
(Colo. 2009).
¶ 59 Under the plain error standard, “we need not decide whether
the court actually erred if it is clear that the alleged error was not
obvious.” People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010).
¶ 60 The first page of Torres’s certified DMV driver history
contained the following attestation by the custodian of records: “A
search of our records has revealed that [Torres] is the only subject
with this name and date of birth.”
¶ 61 At trial, defense counsel did not object to the admission of the
attestation into evidence. Further, the court never mentioned it,
the prosecutor did not refer to it during closing argument, and the
jury did not submit questions about it.
3. The Attestation Was Not Obviously Testimonial
¶ 62 Torres’s attestation argument fails unless the document was
(1) testimonial and (2) so clearly testimonial that the trial judge
should have recognized, “without benefit of objection,” that the
26 attestation was inadmissible unless the court allowed defense
counsel to cross-examine the custodian. Crabtree, ¶ 42, 550 P.3d
at 667 (quoting Romero, ¶ 6, 393 P.3d at 976).
¶ 63 The Confrontation Clause says, in relevant part, that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.
However, “the Confrontation Clause is implicated only when
‘testimonial’ hearsay statements are at issue.” People v. Perez, 2024
COA 94, ¶ 12, 559 P.3d 652, 656 (quoting Crawford v. Washington,
541 U.S. 36, 51 (2004)).
¶ 64 “The ‘core class of testimonial statements’ includes ‘statements
that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available
for use at a later trial.’” Id. at ¶ 13, 559 P.3d at 656 (quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)).
¶ 65 In Melendez-Diaz, the United States Supreme Court held that
“a clerk’s certificate attesting to the fact that the clerk had searched
for a particular relevant record and failed to find it” was testimonial
because it served “as substantive evidence against the defendant
27 whose guilt depended on the nonexistence of the record for which
the clerk searched.” 557 U.S. at 323.
¶ 66 Torres argues that, like the attestation in Melendez-Diaz, the
attestation in his case was testimonial because it functioned as a
“certificate of non-existence.” But unlike the document at issue in
Melendez-Diaz, the attestation in this case did not say that the
custodian was unable to find a particular record. Rather, it said
that the custodian had conducted a search of the DMV records for
an Anthony David Torres with a certain date of birth; such search
revealed that Torres was the “only subject with this name and date
of birth”; and the DMV records contained ten documents for Torres.
¶ 67 We agree with Torres that the prosecution requested the DMV
records search and the attestation. Thus, the attestation was
prepared with the belief that the attached records “would be
available for use at a later trial.” Perez, ¶ 13, 559 P.3d at 656
(quoting Melendez-Diaz, 557 U.S. at 310).
¶ 68 But Torres does not cite any case law or other legal authority
holding that the admission of an attestation saying that the
custodian of records’ search “revealed that this is the only subject
with this name and date of birth” can result in a Confrontation
28 Clause violation. Even if we accept Torres’s argument concerning
the nature of the attestation, we cannot conclude that it was
obvious to the trial court that the attestation was testimonial and,
thus, was inadmissible unless defense counsel was granted the
right to cross-examine the records custodian.
¶ 69 Torres rests his obviousness argument on a single legal
authority — Melendez-Diaz. Yet, as noted above, it was not obvious
to the trial court that a Supreme Court case analyzing a differently
phrased attestation required the trial court to deny the
prosecution’s request in this case to admit the attestation into
evidence if the custodian was unavailable for cross-examination.
Thus, the admission of the attestation did not constitute plain error
because it did not “contravene a clear statutory command, a well-
settled legal principle, or established Colorado case law.” Crabtree,
¶ 42, 550 P.3d at 667.
¶ 70 Because the attestation was not obviously testimonial, we
reject Torres’s contention that the court plainly erred by admitting
it into evidence.
III. Disposition
¶ 71 The judgment is affirmed.
29 JUDGE WELLING and JUDGE TOW concur.