People v. Bernard, Court of Appeals No. 12CA0495

• Citation: 305 P.3d 433
• Case Date: May 23, 2013
• Court: Court of Appeals of Colorado

305 P.3d 433

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Ronald Huey BERNARD, Jr., Defendant–Appellant.

Court of Appeals No. 12CA0495

Colorado Court of Appeals,
Div. V.

Announced May 23, 2013

El Paso County District Court No. 11CR2784, Honorable Gregory R. Werner, Judge.
John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Cynthia J. Jones, Deputy State Public Defender, Deana M. Feist, Deputy State Public Defender, Colorado Springs, Colorado, for Defendant–Appellant.

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.

¶ 2 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 circumstances of the case.

I. Background

¶ 3 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.

¶ 4 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.

¶ 5 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.

[305 P.3d 435]

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. He was acquitted of the witness intimidation charge, but was found guilty and convicted of violating a protection order.

II. Discussion A. Admission of E–Mail into Evidence

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

¶ 8 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, 53 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).

¶ 9 On the morning that the victim was scheduled to testify in defendant's trial, an e-mail 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...