People v. Abad
| Decision Date | 28 January 2021 |
| Docket Number | Court of Appeals No. 18CA0775 |
| Citation | 490 P.3d 1094 |
| Court | Colorado Court of Appeals |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Zachariah Andrew ABAD, Defendant-Appellant. |
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE BROWN
¶ 1 A jury convicted defendant, Zachariah Andrew Abad, of nine counts of sexual exploitation of a child. On appeal, he contends that the district court erred by (1) admitting unauthenticated evidence from a Dropbox account and two cell phones; (2) admitting hearsay testimony from two cell phone extraction reports; and (3) entering multiplicitous convictions in violation of double jeopardy.
¶ 2 In resolving Abad's third contention, infra Part III, we must apply the Colorado Supreme Court's recent decision in People v. Bott , 2020 CO 86, 477 P.3d 137 ( Bott II ), and decide two related matters of first impression. Consistent with Bott II , we conclude that simultaneous possession of more than twenty items of sexually exploitative material constitutes a single offense under section 18-6-403(3)(b.5), C.R.S. 2020. Extending the rationale of Bott II , we conclude that simultaneous possession of multiple sexually exploitative videos constitutes a single offense under section 18-6-403(3)(b.5). And we conclude that the fact that sexually exploitative material was found on three different electronic devices or storage sites, standing alone, does not establish factually distinct offenses justifying multiple convictions and punishments.
¶ 3 Consequently, we conclude that Abad's convictions are multiplicitous and violate double jeopardy. Accordingly, we merge his convictions and remand for resentencing, if necessary. We otherwise affirm the judgment.
¶ 4 Investigator Kevin Donahue of the Jefferson County Sheriff's Office Crimes Against Children Unit received a cyber tip from the National Center for Missing and Exploited Children (NCMEC) about photographs uploaded to a Dropbox account. The NCMEC believed the photographs were sexually exploitative images of children. The NCMEC provided Donahue a Yahoo email address and a list of IP addresses associated with the Dropbox account.
¶ 5 Based on this information, Donahue sent requests for production of records to, among others, Dropbox, Comcast, and Yahoo. In response, Yahoo produced subscriber information that included a phone number. Donahue ran the phone number through law enforcement databases and was able to link the number to Abad and obtain his address.
¶ 6 Once Donahue learned that Abad lived in Arvada, he transferred the case to the Arvada Police Department. The information Donahue provided formed the basis for a search warrant. During the search of Abad's house, police officers seized two cell phones from Abad's bedroom — a Samsung Galaxy S-III (the S-III) and a Samsung Galaxy S-IV (the S-IV). The police downloaded the contents of the cell phones and found sexually exploitative images and videos of children on each device.
¶ 7 The prosecution charged Abad with nine class 4 felony counts of sexual exploitation of a child, based on his alleged possession of the photos found in Dropbox and the photos and videos found on the two phones. As detailed infra Part III.A, the jury convicted Abad of eight class 4 felonies and one class 6 felony. The district court sentenced him to six years each on the class 4 felonies and eighteen months on the class 6 felony, all sentences to run concurrently.
¶ 8 We review all evidentiary rulings for an abuse of discretion. People v. Glover , 2015 COA 16, ¶ 10, 363 P.3d 736. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. Campbell v. People , 2019 CO 66, ¶ 21, 443 P.3d 72 ; People v. Jefferson , 2017 CO 35, ¶ 25, 393 P.3d 493.
¶ 9 Abad contends that the district court erred by admitting the images found in Dropbox because they were not properly authenticated. We disagree.
¶ 10 At trial, Donahue testified that after he received the cyber tip from the NCMEC about a particular Dropbox account that might contain sexually exploitative material, he sent a request for production of records — "basically a search warrant for business records" — to Dropbox "for the subscriber information and content of that Dropbox account." Dropbox responded with the subscriber information for the account, which included Abad's name, an email address, and a list of IP addresses.1 Dropbox also sent a thumb drive "that contained the contents of [the account]." Donahue followed instructions to decrypt and view the thumb drive's contents. Then he copied the contents of the thumb drive onto a disc.
¶ 11 When the prosecutor asked Donahue what he found on the thumb drive, Abad's attorney objected based on lack of authentication. In response, the district court ruled that the prosecutor could lay more foundation to show that the evidence was what the prosecution purported it to be — "information returned from Dropbox pursuant to [Donahue's] investigation."
¶ 12 Donahue then explained that he had reviewed the disc's contents before trial and they were "a fair and accurate representation of what [he] received from Dropbox." And he testified that the files on the thumb drive and disc contained several folders holding hundreds of images and videos of children engaged in sexual acts with adults. The court admitted the disc of Dropbox contents (People's Exhibit 3) into evidence without objection from Abad's attorney.
¶ 13 The prosecutor then offered twenty-three printed images (People's Exhibits 3-1 through 3-23) as evidence of the sexually exploitative material from the Dropbox account. Donahue testified that the printed images were "fair and accurate representations of the materials [he] received from Dropbox." Abad's attorney objected to their admission based on lack of authentication, but the court overruled the objection and admitted them into evidence.
¶ 14 Later, the prosecution qualified Michael Roemer, a detective with the Arvada Police Department, as an expert in Cellebrite software, which the Arvada Police used to download information from Abad's cell phones. He testified that once a cell phone has been downloaded and information from the phone has been extracted, he is trained to look at the extracted information, including images, text messages, and chats. He testified that some of the sexually exploitative images extracted from the S-IV were the same as those on the disc from Dropbox. He testified that some file path names on the extraction report from the cell phones contained the word "Dropbox." And he testified that he viewed chats in the extraction report that had been downloaded from a messaging app, which involved Abad and several others, referenced viewing "nudes of 12- to 17-year-old females," discussed sharing images, and included links to Dropbox posted into the chat.
¶ 15 Authenticity is a condition precedent to admissibility. CRE 901(a). The condition "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. ; People v. N.T.B. , 2019 COA 150, ¶ 16, 457 P.3d 126. The burden to authenticate evidence is low — only a prima facie showing is required. Gonzales v. People , 2020 CO 71, ¶ 27, 471 P.3d 1059. "Once the proponent meets this burden, the actual authenticity of the evidence and the effect of any defects go to the weight of evidence and not its admissibility." N.T.B. , ¶ 16.
¶ 16 Although CRE 901(b) sets forth nonexhaustive examples of ways to authenticate evidence, it does not establish the nature or quantity of proof required or prescribe any exclusive method for authenticating evidence. Gonzales , ¶ 30 ; N.T.B. , ¶ 17.
Because the rule's plain language instructs that a proponent need only provide sufficient evidence to support a finding that the proffered evidence is what the proponent claims, the rule vests trial courts with broad discretion to consider a variety of foundational circumstances depending on the nature of the proffered evidence.
Gonzales , ¶ 30 ; see also Colo. Citizens for Ethics in Gov't v. Comm. for Am. Dream , 187 P.3d 1207, 1213 (Colo. App. 2008) ().
¶ 17 Electronic evidence may be authenticated in several different ways under CRE 901, including through the testimony of a witness with knowledge that the evidence is what it is claimed to be and through circumstantial evidence. See People v. Hamilton , 2019 COA 101, ¶ 36, 452 P.3d 184 ; Glover , ¶ 25. Information from Dropbox and other similar cloud-based storage providers, however, presents unique challenges in that it lacks readily identifiable characteristics that often make authentication under CRE 901 possible. N.T.B. , ¶ 20. Id.
¶ 18 Still, as noted, the standard for authentication is low. Gonzales , ¶ 27. Once the proponent makes a prima facie showing, the ultimate determination of whether the evidence is, in fact, authentic rests with the jury. Id. at ¶ 43 ; accord N.T.B. , ¶ 16.
¶ 19 At trial, the prosecution claimed that the printed images it sought to introduce were...
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