People v. Dutton

2014 COA 51, 356 P.3d 871, 2014 WL 1647638, 2014 Colo. App. LEXIS 684
CourtColorado Court of Appeals
DecidedApril 24, 2014
DocketCourt of Appeals No. 11CA1456
StatusPublished
Cited by7 cases

This text of 2014 COA 51 (People v. Dutton) 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. Dutton, 2014 COA 51, 356 P.3d 871, 2014 WL 1647638, 2014 Colo. App. LEXIS 684 (Colo. Ct. App. 2014).

Opinion

Opinion by

JUDGE FURMAN

1 Defendant, Anton Paul Dutton, appeals the judgment of conviction finding him guilty of vehicular eluding, aggravated driving after revocation prohibited (aggravated - DARP), reckless driving, and driving in excess of the speed limit. He contends that (1) the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by him, (2) there was insufficient evidence to support his reckless driving and vehicular eluding convie-tions, and (8) his vehicular eluding and reckless driving convictions should be vacated because they are lesser included offenses of aggravated DARP. Because we disagree with Dutton's first two contentions but agree, in part, with his third contention, we affirm with respect to all but his conviction for reckless driving, which we vacate.

I. The Driving Incident

2 A police officer was parked on the side of the road monitoring traffic when he saw a vehicle traveling in excess of the posted speed limit, The vehicle slowed as it approached the officer, and the officer was able to look through the windshield and see a male driver and two female passengers.

T8 After the vehicle passed by, the officer pulled behind it, activated his overhead lights, and hit several bursts of his stren. The vehicle eventually pulled over to the side of the road, and the officer parked behind it.

14 As the officer opened the door of his patrol car, the vehicle rapidly accelerated, spinning its tires so that they threw up sand and gravel. The vehicle reached thirty miles per hour before the end of the street. The vehicle then failed to stop at a posted sign and slid sideways through an intersection before turning left onto another street.

15 The officer returned to his patrol car and began pursuing the vehicle, with his overhead lights still activated. He pulled behind the vehicle again, but the vehicle continued to accelerate.

11 6 Looking ahead, the officer saw a pedestrian with a dog on the left side of the street and another pedestrian on the right side of the street. The pedestrian on the left side was beginning to cross the street, so the vehicle had to swerve in order to avoid hitting the pedestrian. Immediately, the officer ended his pursuit because he felt that the vehicle was putting him, the female passengers, pedestrians, and other citizens in danger. The officer saw the vehicle continue to speed away before it made an abrupt right turn onto another street.

T7 After the officer returned to the police station, he determined that the vehicle identification number was registered to a woman, E.J. The officer called E.J., who told him that Dutton was the last person she knew who had the car, Several months earlier, E.J. had left the car, along with its keys, with Dutton, who was a mechanic. E.J. had also agreed to sell the car to Dutton's wife for $200. But, E.J. did not receive the $200, and she had been unable to contact Dutton for _ several months.

18 After E.J. spoke to the officer, she called Dutton and told him that the officer had contacted her. Dutton became angry with her because he thought she had called the police about him. Nevertheless, E.J. gave Dutton the officer's contact information and tried to get Dutton to contact the officer.

T9 The officer then received several phone calls from an individual who identified himself as "Anton Dutton," but the officer was unable to persuade the caller to come to the police station.

[874]*874€ 10 Eventually, the officer identified Dut-ton in a pretrial photo lineup as the driver of the car. Dutton had previously been served with notice that he was a habitual traffic offender and that his right to operate motor vehicles had been revoked.

11 At trial, Dutton's defense was that he was not the driver of the vehicle.

II. Phone Statement

112 We first consider whether the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by Dutton, We conclude it did not.

1 13 According to CRE 901(a), "authentication or identification" is "a condition precedent to admissibility" that may be "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

With regard to a phone call, self-identification is sufficient to establish the identity of a party to the call when it is coupled with additional cireumstantial evidence. See CRE 901(b)(6); see also United States v. Kingston, 971 F.2d 481, 485 (10th Cir.1992); United States v. Orozco-Samtillan, 903 F.2d 1262, 1266 (9th Cir.1990) ("The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge of facts known peculiarly to the caller.") (citing United States v. Miller, 771 F.2d 1219, 1234 (9th Cir,1985)), overruled in part on other grounds by Planned Parenthood of the Columbia/ Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1066-70 (9th Cir. 2002) (en banc).

115 We review a trial court's ruling on authentication for an abuse of discretion. See People v. Warrick, 284 P.Bd 139, 141 (Colo.App.2011). We will not disturb the trial court's ruling "unless the ruling is manifestly arbitrary, unreasonable, or unfair." Id.

€16 The prosecution sought to introduce the testimony of the officer that he received a phone call from an individual identifying himself as "Anton Dutton" and that, during this phone call, the caller stated, "The reason that we took off was because that b[* * * *] hasn't given me the papers for the car and I didn't want to go to jail for grand theft auto."

17 The prosecution presented the following evidence to establish that the caller was, in fact, Dutton.

e The officer called E.J., and E.J. told him that she would contact Dutton, provide Dutton with the officer's contact information, and ask Dutton to call the officer. E.J. then called Dutton, gave him the officer's contact information, and asked him to call the officer. .
e Less than twenty minutes after calling E.J., the officer received a phone call from an individual identifying himself as "Anton Dutton."
e The caller demonstrated familiarity with the facts of the incident, including that the car was being sold and that there was more than one person in the car.

T18 Over a defense objection, the trial court admitted the statement from the phone call. -

1 19 We conclude that there was sufficient evidence to authenticate the phone call because the timing of the call to the officer and the caller's self-identification as "Anton Dut-ton" allowed the jury to reasonably infer that Dutton received the officer's message to call him through E.J.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 COA 51, 356 P.3d 871, 2014 WL 1647638, 2014 Colo. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dutton-coloctapp-2014.