People v. Bernard

2013 COA 79, 305 P.3d 433, 2013 WL 2299719, 2013 Colo. App. LEXIS 775
CourtColorado Court of Appeals
DecidedMay 23, 2013
DocketCourt of Appeals No. 12CA0495
StatusPublished
Cited by9 cases

This text of 2013 COA 79 (People v. Bernard) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bernard, 2013 COA 79, 305 P.3d 433, 2013 WL 2299719, 2013 Colo. App. LEXIS 775 (Colo. Ct. App. 2013).

Opinion

Opinion by

Judge TERRY

{1 Defendant, Ronald Huey Bernard, Jr., appeals the judgment of conviction entered following a jury verdict finding him guilty of one count of violating a protection order. We affirm.

12 As an issue of first impression, we consider the requirements for proper authentication of e-mails under CRE 901. We conclude that e-mails may be authenticated (1) through testimony explaining that they are what they purport to be; or (2) through consideration of distinctive characteristics shown by an examination of their contents and substance in light of the cireumstances of the case.

I. Background

18 On August 11, 2011, a mandatory protection order was entered, naming defendant as the restrained party and the victim and her son as the protected parties The order restrained defendant from harassing, molesting, intimidating, contacting, or communicating with the victim, and ordered defendant to vacate the victim's home. He was advised of the order and its contents during an in-custody video advisement with a magistrate.

T4 The victim testified that, on August 15, defendant called her to wish her a happy birthday and arranged to pick up some of his clothing that she planned to leave outside her door. He arrived at her apartment in the early hours of August 16 and banged and knocked on her doors and windows. The victim testified that it sounded as if he were trying to get in. During the incident defendant told her that if she showed up in court the next day, one of them would not be "making it back," and that he would kill her if she called the police. The victim called her mother and then called the police.

15 Defendant testified that he was living with the victim on the days leading up to this incident, and they had spent the entire day together on August 15. He said that late that night and into the early morning of August 16, the two had an argument, after which he left to smoke a cigarette. When he had finished, he returned and attempted to get back into the apartment.

[435]*435T6 The responding police officers testified that when they arrived, they found defendant in a basement storage room in the victim's apartment complex. Defendant was arrested, and later charged with one count of intimidation of a witness and one count of violation of a protection order. quitted of the witness intimidation charge, but was found guilty and convicted of violating a protection order. He was ac-

IIL Discussion

A. Admission of E-Mail into Evidence

17 Defendant first argues that the trial court erred in admitting an e-mail into evidence because it was not properly authenticated. We disagree.

18 We review evidentiary rulings, including foundation and authentication rulings, for an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993); People v. Huehn, 58 P.3d 733, 736 (Colo.App.2002). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Melillo, 25 P.3d 769, 773 (Colo.2001).

T9 On the morning that the victim was scheduled to testify in defendant's trial, an email was sent to the victim from defendant's e-mail account. It stated, "I told you it wuz us r nobody u gettin ready 2 make the biggest mistake my God have mercy on Ur soul rip [sic]." The e-mail was admitted into evidence.

110 Contrary to defendant's argument, the e-mail was sufficiently authenticated. "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); see also People v. Crespi, 155 P.3d 570, 574 (Colo.App.2006); Huehn, 53 P.3d at 736. We conclude that e-mails may be authenticated (1) through testimony explaining that they are what they purport to be, see-CRE 901(b)(1); or (2) through consideration of distinctive characteristics shown by an examination of their contents and substance in light of the cireumstances of the case, see-CRE 901(b)(d). See also United States v. Fluker, 698 F.3d 988, 999 (7th Cir.2012) (applying Fed.R.Evid. 901(b)(1) and (4), which are identical to CRE 901(b)(1) and (4), to emails); United States v. Siddiqui, 235 F.3d 1318, 1322 (lith Cir.2000) (applying Fed. R.Evid. 901(b)(4) to e-mails).

T11 When the victim was shown a hard copy of the e-mail, she testified that it was a true and accurate copy of the e-mail that defendant had sent to her. She stated that she received it at 1:02 a.m. on the morning of her testimony, and that she recognized the email address of the sender as one that belonged to defendant. She further testified that she understood the e-mail to be a threat that "seared [her] a lot." Defendant did not contest that the sending e-mail address belonged to him. In addition, the contents of the e-mail indicated knowledge by the sender of defendant's previous relationship with the victim, as well as knowledge that the victim was scheduled to testify later that day.

112 While the victim admitted that she had had access to defendant's e-mail account in the past, any doubt about whether defendant had actually sent the e-mail went only to the weight of the evidence and not to its admissibility. See Crespi, 155 P.3d at 574.

1 13 We therefore conclude that the court did not abuse its discretion in admitting the e-mail into evidence.

B. Sufficiency of the Evidence

T 14 Defendant next argues that the prosecution failed to present sufficient evidence proving beyond a reasonable doubt that he was guilty of violating a protection order. We disagree.

1. Standard of Review

15 We review de novo whether the evidence was sufficient to support the convietion. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005); People v. Randell, 2012 COA 108, ¶ 29, 297 P.3d 989.

T16 In assessing the sufficiency of the evidence, we must determine whether the evidence, both direct and cireunmstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial [436]*436and sufficient to support a conclusion by a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Dempsey, 117 P.3d at 807; People v. Davis, 2012 COA 56, ¶ 12, 296 P.3d 219. The prosecution is given the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Poe, 2012 COA 166, ¶ 14, - P.3d -, 2012 WL 4829493. And it is the fact finder, not the reviewing court, that determines the credibility of witnesses, weighs the evidence, and resolves conflicts, inconsistencies, and disputes in the evidence. Id.

2. Analysis

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 79, 305 P.3d 433, 2013 WL 2299719, 2013 Colo. App. LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bernard-coloctapp-2013.