People v. Dominguez

• Citation: 454 P.3d 364
• Decision Date: 23 May 2019
• Docket Number: Court of Appeals No. 15CA1178
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Anthony DOMINGUEZ, Defendant-Appellant.
• Court: Court of Appeals of Colorado

454 P.3d 364

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Brian Anthony DOMINGUEZ, Defendant-Appellant.

Court of Appeals No. 15CA1178

Colorado Court of Appeals, Division VII.

Announced May 23, 2019

Rehearing Denied June 20, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DUNN

¶1 Brian Anthony Dominguez appeals the judgment of conviction entered after a jury found him guilty of possession of a controlled substance with intent to distribute, possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint. He also appeals his sentence. We affirm.

I. Background

¶2 While outside the home of his daughter’s grandmother, Dominguez had a verbal altercation with the grandmother’s relatives. One of the relatives called 911, and Dominguez drove away at a high speed.

¶3 Agent Angela Garza later spotted Dominguez’s truck. After following it for a short time, she attempted to initiate a traffic stop. Dominguez accelerated away, and a high-speed chase ensued. Agent Garza and other police agents ultimately stopped their pursuit. But later, Agent Garza located Dominguez’s abandoned truck. Police agents found Dominguez hiding nearby and arrested him.

¶4 Agent Ryan Carmichael then searched Dominguez’s truck and discovered the following items:

• a large bag containing 208 grams (almost half a pound) of methamphetamine;

• a small bag containing 0.29 grams of methamphetamine;

• a small bag containing 0.47 grams of methamphetamine;

• a third small bag, which was empty;

• a small spoon "that appeared ... to be the size used to fill these smaller baggies";

• an electronic scale with a "white substance" on it, which was similar in color to the recovered methamphetamine;

• a cell phone;

• a glass smoking pipe; and

• used and unused syringes.

¶5 The prosecution charged Dominguez with possession of a controlled substance with intent to distribute, possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint.¹ At trial, Dominguez conceded all but the possession of a controlled substance with intent to distribute charge. The jury found Dominguez guilty of each count, and the court sentenced him to twelve years in prison.

II. Text Messages

¶6 Dominguez primarily contends the trial court erred in admitting text messages discovered on his cell phone because (1) they were inadmissible hearsay; (2) their admission violated his right to due process; and (3) they should have been excluded under CRE 403. These errors, he argues, require the reversal of his possession of a controlled substance with intent to distribute conviction. We consider and reject each contention.

A. Additional Facts

¶7 Agent Carmichael testified that when he took the cell phone from Dominguez’s truck and examined it, he saw text messages that "concern[ed] [him]." He "relayed what [he] saw to ... agents on the West Metro Drug Task Force."

¶8 Agent Adrian Alderete, a member of the West Metro Drug Task Force, later testified that he executed a search warrant on the cell phone and discovered a series of text messages sent to it over a span of approximately two hours near the time of Dominguez’s arrest. The prosecutor moved to admit a photograph of Dominguez’s cell phone showing the following text messages:

• "[c]an you do 2 for 1500 if I got all of it";

• "[y]our voicemail is full";

• "[c]an you do that for me";

• "[c]all me please"; and

• "[c]an you do 2 for 1600."

¶9 Dominguez’s counsel objected, contending that the text messages were inadmissible hearsay. In response, the prosecutor argued that they were "not ... statement[s] at all" but "in the nature of ... verbal act[s]," so "hearsay doesn’t apply."

¶10 The court overruled the objection, concluding that the text messages were not hearsay. It explained, "While arguably the texts are communicative in nature and an inference can be drawn from them, the Court would find that they are not assertions. None of the messages on that screen are assertions. They are all inquiries or questions."

B. Hearsay

¶11 Dominguez says this was reversible error. He argues that the text messages constituted inadmissible hearsay because they were offered for the truth of the matter "impliedly asserted" in them — that he "was a drug dealer."² We disagree.

1. Standard of Review

¶12 The parties agree that Dominguez preserved this issue but dispute the standard by which we review it. Dominguez argues for de novo review, contending that "whether evidence is hearsay presents a legal question." The People respond that whether the court erred in admitting evidence is reviewed for an abuse of discretion.

¶13 The People are correct that we review a trial court’s evidentiary ruling for an abuse of discretion. People v. Phillips , 2012 COA 176, ¶ 63, 315 P.3d 136 ; see also People v. Cohen , 2019 COA 38, ¶ 10. In determining if the court abused its discretion, however, we not only consider whether the court’s ruling was manifestly arbitrary, unreasonable, or unfair, but also whether its ruling was contrary to the law. People v. Jackson , 2018 COA 79, ¶ 47. This latter question does not require deference to the trial court. Instead, the trial court’s application or interpretation of the law when making an evidentiary ruling is a question of law we review de novo. See People v. Reed , 216 P.3d 55, 56-57 (Colo. App. 2008) ; see also E-470 Pub. Highway Auth. v. 455 Co. , 3 P.3d 18, 22 (Colo. 2000) ; Sos v. Roaring Fork Transp. Auth. , 2017 COA 142, ¶ 48.

¶14 We therefore review de novo the trial court’s application of hearsay law, but, absent a misapplication of the law, the decision to admit evidence remains in the court’s broad discretion. See Phillips , ¶ 63 ; see also Danko v. Conyers , 2018 COA 14, ¶ 26, 432 P.3d 958.

2. Discussion

¶15 Barring application of an exception, hearsay is inadmissible. CRE 802 ; People v. Glover , 2015 COA 16, ¶ 37, 363 P.3d 736. Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." CRE 801(c) ; Phillips , ¶ 61. A statement is defined as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him to be communicative." CRE 801(a).

¶16 The evidentiary rules do not define "assertion," leading courts to struggle with whether an implied assertion falls within the hearsay definition. A division of this court identified this "classic dilemma" in People v. Griffin , 985 P.2d 15, 17 (Colo. App. 1998). There, the division explained the "dilemma is how to treat a statement or conduct by a person out of court, not subject to cross-examination at trial, described by a witness at trial, from which a fact finder could infer a separate fact." Id.

¶17 Griffin stated that CRE 801(a) "resolves the dilemma by focusing solely on whether the assertion or conduct by the out-of-court witness was intended to imply to the testifying witness a separate fact in question at trial." Id. at 17-18 ; see also Fed. R. Evid. 801 advisory committee’s note (The definition of a statement under the federal counterpart to CRE 801 excludes "from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.").

¶18 Dominguez takes issue with Griffin ’s intent-based approach. He argues it is based on an interpretation of the commentary in Fed. R. Evid. 801, which is not included in CRE 801. Further, he notes that courts in other jurisdictions have criticized the federal view. See, e.g. , State v. Dullard , 668 N.W.2d 585, 593-95 (Iowa 2003). But see Hernandez v. State , 863 So. 2d 484, 486 (Fla. Dist. Ct. App. 2004) (applying the intent-based approach); State v. Carrillo , 156 Ariz. 120, 750 P.2d 878, 882 (Ariz. Ct. App. 1987) (same), aff’d in part, vacated in part on other grounds , 156 Ariz. 125, 750 P.2d 883 (1988).

¶19 We need not revisit Griffin here. This is so because we conclude that the text messages were properly admitted verbal acts (as argued by the prosecution at trial), which are not hearsay. See People v. Thompson , 2017 COA 56, ¶ 135, 413 P.3d 306 ; People v. Scearce , 87 P.3d 228, 233 (Colo. App. 2003) ; see also United States v. Rodriguez-Lopez , 565 F.3d 312, 314 (6th Cir. 2009).

¶20 "A verbal act is an utterance of an operative fact that gives rise to legal consequences." Scearce , 87 P.3d at 233 (citation omitted). It’s offered not for its truth, but to show that it was made. Thompson , ¶ 135. Thus, verbal acts aren’t hearsay. Id. ; Scearce , 87 P.3d at 233 ; see also United States v. Montana , 199 F.3d 947, 950 (7th Cir. 1999) ("Performative utterances are not within the scope of the hearsay rule, because they do not make any truth claims.").

¶21 The text messages sent to Dominguez’s cell phone don’t make any truth claims; rather, they suggest a request to purchase something at a proposed price. Such statements have a legal effect regardless of their truth. See Scearce , 87 P.3d at 233 (recognizing examples of a verbal act include oral utterances constituting the offer and acceptance for a contract); see also Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd. , 298 F.3d 201, 218 n.20 (3d Cir. 2002) ("[A] statement offering to sell a product at a particular price is a ‘verbal act,’ not hearsay, because the statement itself has legal effect."); Little v. State , 204 Md. 518, 105 A.2d 501, 503 (1954) (recognizing that the "verbal act of taking a bet" was not inadmissible hearsay); 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 801.11(3) (2d ed. 2018) (examples of a verbal act include contract offers and illegal solicitations).

¶22 Even more to the point, "the purchase of a drug, legally or illegally, is a form of...